633 N.Y.S.2d 47 | N.Y. App. Div. | 1995
—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mastro, J.), rendered January 7, 1994, convicting him of murder in the second degree, criminal possession of a weapon in the second degree, and assault in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).
However, because the defendant was denied his right to a public trial, a new trial is ordered (see, US Const 6th Amend; Civil Rights Law § 12; Judiciary Law § 4). The testimony of the undercover officer at the hearing held pursuant to People v Hinton (31 NY2d 71, cert denied 410 US 911) was insufficient to satisfy the criteria of People v Martinez (82 NY2d 436). Further, the closure was broader than necessary, as the court failed to indicate a basis for excluding the defendant’s father during the undercover officer’s testimony (see, People v Kin Kan, 78 NY2d 54; People v Gutierez, 86 NY2d 817; People v Davis, 210 AD2d 345). Rosenblatt, J. P., Miller, Ritter and Friedmann, JJ., concur.
