Opinion
October 17, 1995
Appeal from the Supreme Court, New York County (Ira F. Beal, J.).
Defendant was arrested in March 1993 in a routine buy-and-bust operation on East 100th Street in Manhattan. The arresting officer testified in July, at a hearing on the People's application for closure ( People v. Hinton, 31 N.Y.2d 71, cert denied 410 U.S. 911), that he had performed undercover assignments for the Manhattan North (above 77th Street) Tactical Narcotics Team in three different precincts over the past 11 months. The purpose of the application was to preserve the officer's safety and continued utility as an undercover. Defendant resisted the exclusion of her family (her husband, who was represented to have a clean record, and their children, ages 7 and 13), who had been the only spectators in the courtroom. The officer affirmed that he was still working "in the vicinity of * * * East 100th Street", although his current assignment was the 34th precinct (155th to 203rd Streets). There was no testimony as to how many undercover cases — if any — he still had open in the precinct where defendant was arrested. The prosecutor asked the court merely to "rely on the testimony of the officer", which is precisely what it did in sealing the courtroom for his trial testimony.
Manhattan's 34th precinct is hardly in the "same vicinity" as East 100th Street ( Vidal v. Williams, 31 F.3d 67, 69, cert denied ___ US ___, 115 S Ct 778). Absent an expression of particularized fear for safety or compromise, closure of the courtroom to defendant's immediate family during the trial testimony of this key witness was unwarranted ( People v Martinez, 82 N.Y.2d 436), and thus violated her constitutional right to a public trial ( People v. Gutierez, 86 N.Y.2d 817; see, People v. Kin Kan, 78 N.Y.2d 54).
Concur — Sullivan, J.P., Rosenberger, Wallach, Ross and Tom, JJ.