Opinion
October 5, 1987
Appeal from the Supreme Court, Queens County (Dunkin, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
During the course of the trial, the prosecutrix moved to seal the courtroom during the testimony of an undercover officer, based upon her assertion that the undercover officer was still actively working in the county and that she feared for his safety in that he might be recognized by people entering the courtroom. Defense counsel objected, arguing that only the defendant's mother and sister were present in the courtroom and that they should be permitted to remain to insure that the trial was not a "star chamber" proceeding, and because they did not pose a threat to the undercover officer. After these arguments, the court stated, "[T]his is an undercover operation. I think I'm inclined to go along with the District Attorney. I will close the courtroom". The defendant's mother and sister were then asked to leave the courtroom.
The reasons proffered by the prosecutrix were not sufficient to justify the closing of the courtroom (see, People v. Gonzalez, 74 A.D.2d 928; People v. Brown, 79 A.D.2d 659). "That undercover work at times entails serious threats to the safety of agents is by no means sufficient to connect that threat to the witness" (People v. Gonzalez, supra, at 929). The prosecutrix's conclusory motion was not reasonably directed toward the ascertainment of whether the undercover officer's public testimony would threaten his safety or the integrity of other cases (see, People v. Jones, 47 N.Y.2d 409, cert denied 444 U.S. 946). Although there should have been a factual showing that an exception to the norm of a public trial was justified, instead, "the court was content to rely on its own unparticularized impressions of the vicissitudes of undercover narcotics work in general" (People v. Jones, supra, at 415).
We also note that Police Officer Dieterich was improperly permitted, over objection, to bolster the identification of the defendant by the undercover officer by repeating the content of the radio transmission in which the undercover officer stated that the backup team had arrested the correct person (see, People v. Trowbridge, 305 N.Y. 471). The defendant's other contentions are unpreserved for our review (see, People v Johnson, 42 N.Y.2d 841; People v. Jones, 81 A.D.2d 22, 36-39), and, in any event, are without merit (see, People v. Paranzino, 40 N.Y.2d 1005; People v. Sirianni, 97 A.D.2d 938). Weinstein, J.P., Rubin, Kunzeman and Kooper, JJ., concur.