Opinion
Argued October 18, 1999
November 30, 1999
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Fisher, J.), rendered July 30, 1996, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Robin A. Forshaw, Mark A. Levine, and Peter Mason of counsel), for respondent.
LAWRENCE J. BRACKEN, J.P., SONDRA MILLER, WILLIAM C. THOMPSON, WILLIAM D. FRIEDMANN, JJ.
DECISION ORDER
ORDERED that the judgment is reversed, on the law, and a new trial is ordered.
The defendant contends that he was denied his right to a public trial ( see, US Const 6th Amend; Civil Rights Law § 12; Judiciary Law § 4; People v. Jones, 47 N.Y.2d 409, cert denied 444 U.S. 946) because the Supreme Court excluded his wife and child from the courtroom during the testimony of an undercover officer. We agree. During the Hinton hearing ( see, People v. Hinton, 31 N.Y.2d 71, cert denied 410 U.S. 911), the defendant argued against closure, stating that his wife and child had been attending the proceedings and therefore should not be excluded. To properly exclude them from the courtroom, the People were required to present evidence that those individuals threatened the safety of the undercover officer ( see, People v. Glover, ___ N.Y.2d ___ [Aug. 26, 1999]; People v. Nieves, 90 N.Y.2d 426; People v. Gutierez, 86 N.Y.2d 817; People v. Kin Kan, 78 N.Y.2d 54; People v. Perez, 252 A.D.2d 593; People v. Scott, 237 A.D.2d 544; People v. Gayle, 237 A.D.2d 532). Although the undercover officer testified that he would be immediately returning to the area in which the defendant was arrested, nothing in the record demonstrates, and the Supreme Court did not find, that the defendant's wife and child posed a threat to the officer. Therefore, the defendant is entitled to a new trial.
BRACKEN, J.P., S. MILLER, THOMPSON, and FRIEDMANN, JJ., concur.