Opinion
May 18, 1971
Judgment, Supreme Court, New York County, rendered on May 8, 1970, convicting the defendant after a jury trial, unanimously reversed, on the law, and a new trial directed. The court, in its discretion, excluded the public from the trial without any special circumstances making it necessary "to preserve order and decorum in the courtroom, to protect the rights of parties and witnesses, and generally to further the administration of justice." ( People v. Jelke, 308 N.Y. 56, 63; see People v. Hagen, 24 N.Y.2d 395.) The constitutional requirement of a public trial not having been complied with, the People concede that on this record a reversal is warranted. However, it is contended that the case should be remanded for a hearing to complete the record on the reasons for exclusion. There being no indication of what could be accomplished by a further hearing and the present record showing a direction for exclusion and an actual exclusion, a new trial must be granted.
Concur — Markewich, J.P., Kupferman, Steuer, Tilzer and Eager, JJ.