Opinion
December 4, 1995
Appeal from the Supreme Court, Queens County (Kohn, J.).
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial 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 family 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 stated that he wanted his family present. When the defendant seeks to limit closure to permit the attendance of certain individuals, the People must present evidence that those individuals threaten an overriding interest of the witness (see, People v Gutierez, 86 N.Y.2d 817; People v Kin Kan, 78 N.Y.2d 54, 58-59; People v Pankey, 219 A.D.2d 737). Nothing in this record demonstrates that the defendant's family posed a threat to the undercover officer.
The defendant's remaining contentions are without merit. Bracken, J.P., Rosenblatt, Miller and Krausman, JJ., concur.