Opinion
Argued February 13, 2001.
March 12, 2001.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ruchelsman, J.), rendered February 23, 1999, convicting him of criminal sale of a controlled substance in the second degree (two counts) and criminal sale of a controlled substance in the third degree (four counts), upon a jury verdict, and imposing sentence.
M. Sue Wycoff, New York, N.Y. (Carol Santangelo of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Lori Glachman, and Sholom Twersky of counsel), for respondent.
Before: GABRIEL M. KRAUSMAN, J.P., GLORIA GOLDSTEIN, DANIEL F. LUCIANO, SANDRA J. FEUERSTEIN, 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 mother from the courtroom during the testimony of an undercover police 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 and to allow his mother to be present. Thus, to properly exclude her from the courtroom, the People were required to present evidence that she threatened the safety of the undercover officer (see, People v. Glover, 93 N.Y.2d 1010; 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. Vargas, 244 A.D.2d 367; People v. Scott, 237 A.D.2d 544; People v. Gayle, 237 A.D.2d 532). Although the undercover officer would be returning immediately to the area in which the defendant was arrested, nothing in the record demonstrates that the defendant's mother posed a threat to the officer (see, People v. Perez, supra; People v. Vargas, supra). Therefore, the defendant is entitled to a new trial.
The defendant's remaining contention is without merit.