633 N.Y.S.2d 521 | N.Y. App. Div. | 1995
—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kay, J.), rendered February 23, 1994, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial 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 NY2d 409, cert denied 444 US 946) because the Supreme Court excluded from the courtroom members of his family during the testimony of an undercover police officer. We agree. At the conclusion of a hearing pursuant to People v Hinton (31 NY2d 71, cert denied 410 US 911), the defendant objected to the exclusion of his mother and several cousins. When the defendant objects to the exclusion of a particular individual, the party seeking exclusion must prove that it is necessary to protect an overriding interest of the witness (see, People v Kin Kan, 78 NY2d 54, 58-59). Nothing in this record supports the exclusion of the defendant’s family, thereby rendering the closure "broader than constitutionally tolerable” (People v Gutierez, 86 NY2d 817, 818).
In view of our determination we need not reach the defendant’s remaining contentions. Mangano, P. J., Bracken, Sullivan and Rosenblatt, JJ., concur.
