Opinion
September 25, 1995
Appeal from the Supreme Court, Queens County (Robinson, J.).
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) when the trial court closed the courtroom during the testimony of an undercover police officer. We agree. The officer's testimony at the Hinton hearing (see, People v Hinton, 31 N.Y.2d 71, cert denied 410 U.S. 911) failed to establish a link between the officer's fear for her safety and her open-court testimony (see, People v Martinez, 82 N.Y.2d 436). The record does not reflect that the undercover officer was still working in the locale where the defendant was arrested or that she expected to return there (see, e.g., People v Cepeda, 209 A.D.2d 631). Moreover, the closure was broader than necessary since there was no finding by the court that the presence of the defendant's girlfriend in the courtroom posed any threat to the undercover officer. Therefore, we conclude that the closing of the courtroom to everyone, including the defendant's girlfriend, amounted to a violation of the defendant's right to a public trial (see, People v Kin Kan, 78 N.Y.2d 54; People v Green, 215 A.D.2d 309).
The defendant's remaining contention is not preserved for appellate review (see, CPL 470.05). Mangano, P.J., Joy, Krausman and Florio, JJ., concur.