Opinion
February 29, 1988
Appeal from the Supreme Court, Queens County (Sherman, 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 is ordered.
The testimony of the undercover officer was heard in the cleared and closed courtroom. No hearing on the issue of closure was conducted prior thereto. "[N]o closing can be tolerated that is not preceded by an inquiry careful enough to assure that the defendant's right to a public trial is not being sacrificed for less than compelling reasons" (People v Jones, 47 N.Y.2d 409, 414-415, cert denied 444 U.S. 946). Such a closing is per se reversible error. The ex post facto determination by the Trial Judge that the closure was necessary, without having first inquired of the undercover officer to ascertain that preservation of his anonymity was necessary to protect his safety or utility to the police department, does not suffice to justify the prior closure (see, People v Roberto, 67 A.D.2d 687; see also, People v Cuevas, 50 N.Y.2d 1022), particularly in light of the failure to provide the defense counsel with an opportunity to examine the undercover officer or even to be heard prior to a decision to close the courtroom.
We further note that the prosecutrix overstepped the bounds of appropriate rhetorical commentary. The prosecutrix's mischaracterization of the defendant's testimony, which was intended to convince the jury that the defendant had admitted his guilt when he had not, constitutes a gross distortion, the magnitude of which was highly prejudicial (see, People v Ashwal, 39 N.Y.2d 105, 109-110; People v La Rosa, 112 A.D.2d 954; see also, People v Figueroa, 80 A.D.2d 520, 522). Mollen, P.J., Kunzeman, Rubin and Balletta, JJ., concur.