Opinion
April 27, 1998
Appeal from the County Court, Nassau County (Cotter, J.).
Ordered that the case is remitted to the County Court, Nassau County, for a new Wade hearing in accordance herewith, and the appeal is held in abeyance in the interim. The County Court, Nassau County, is to file its report with all convenient speed.
We find unpersuasive the defendant's contention that the hearing court erred in denying his application to call the confidential informant as a witness at the Wade hearing, since the hearing evidence did not raise any substantial issues regarding the suggestiveness of the identification procedures (see, People v. Chipp, 75 N.Y.2d 327, cert denied 498 U.S. 833; People v. Harvall, 196 A.D.2d 553; People v. Christenson, 188 A.D.2d 659).
However, as the People concede, the defendant is entitled to a new Wade hearing because the court improperly closed the courtroom during the testimony of an undercover police officer. At the start of the Wade hearing, the People made an application to close the courtroom at the request of the undercover officer because "[s]he is an undercover narcotics detective, who is actively working in the area and would be in fear of her identity being now known during this hearing". The defendant's counsel objected, and the court granted the application without further inquiry. It is well settled that mere generalized assertions that an undercover officer will continue to work in the vicinity of the arrest and is in fear for his or her safety are insufficient to support closure in the absence of any additional inquiry (see, Waller v. Georgia, 467 U.S. 39; People v. Tolentino, 90 N.Y.2d 867; People v. Martinez, 82 N.Y.2d 436). Accordingly, the defendant is entitled to a new suppression hearing, with any new application for closure to be determined in light of the conditions existing at the time of the hearing (see, Waller v. Georgia, supra; People v. Guevara, 135 A.D.2d 566).
Ritter, J.P., Sullivan, Krausman and Luciano, JJ., concur.