Opinion
2001-08761
Argued April 24, 2003.
August 11, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.), rendered October 2, 2001, convicting him of criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (John Gemmill of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, Esther Noe, and Thomas M. Ross of counsel), for respondent.
Before: SANDRA J. FEUERSTEIN, J.P., LEO F. McGINITY, ROBERT W. SCHMIDT, THOMAS A. ADAMS, 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; People v. Martinez, 82 N.Y.2d 436, 441). During a Hinton hearing ( see People v. Hinton, 31 N.Y.2d 71, cert denied 410 U.S. 911), the defendant objected to the exclusion of certain family members and friends. The Supreme Court permitted the defendant's family, girlfriend, and girlfriend's mother to remain in the courtroom, but excluded the other friends whose presence was requested. "Before a trial court may exclude a specific individual from the courtroom by a closure order, the People must present evidence that the individual poses a threat to the safety of an undercover officer, who is going to testify" ( People v. Ematro, 284 A.D.2d 408, 409; see People v. Nieves, 90 N.Y.2d 426; People v. Rivera, 281 A.D.2d 496). Although the undercover officer would be returning to the area in which the defendant was arrested, nothing in the record demonstrates that his defendant's friends resided or worked in that area. Nor did the People present sufficient evidence that the friends posed a threat to the officer. As the closure order was broader than necessary and not supported by the record, the defendant is entitled to a new trial ( see People v. DeJesus, 274 A.D.2d 400; People v. Rentas, 253 A.D.2d 469; People v. Rivera, supra).
In view of our determination, we do not reach the defendant's remaining contentions.
FEUERSTEIN, J.P., McGINITY, SCHMIDT and ADAMS, JJ., concur.