612 N.Y.S.2d 650 | N.Y. App. Div. | 1994
—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Wade, J.), rendered April 1, 1992, convicting him of
Ordered that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact have been raised or considered.
On the evening of January 23, 1991, three undercover police officers assigned to the Brooklyn North Tactical Narcotics Team drove to the corner of Pitkin Avenue and Logan Street in order to participate in a so-called "buy and bust” operation. Upon arriving at that location, one of the undercover officers entered an apartment building at 436 Logan Street, where he purchased two vials of cocaine from the defendant in exchange for $10 in prerecorded money. After the sale was completed, the undercover officer returned to his vehicle and transmitted a description of the suspect to his supervisor. When the defendant exited the apartment building about three minutes later, he was arrested, and the prerecorded money was recovered.
During the course of the trial, the prosecutor moved to close the courtroom during the testimony of the undercover officer who had purchased narcotics from the defendant, and during the testimony of a second undercover officer who had acted as a backup or "ghost” during the transaction. After conducting a hearing pursuant to People v Hinton (31 NY2d 71), the trial court granted the People’s application to close the courtroom to the public during the testimony of the two officers. Following the ruling, the defendant’s attorney, who was employed by the Legal Aid Society, asked that one of her supervisors be permitted to remain in the courtroom, contending that the presence of a supervising attorney would not jeopardize the safety of the undercover officers. Although the Trial Judge acknowledged that it might to be to defense counsel’s "advantage perhaps to confer” with a supervisor "in some aspect of the case”, the court nevertheless denied her request, commenting that "my practice is to exclude everybody”.
On appeal, the defendant contends, inter alia, that the trial court improperly closed the courtroom to defense counsel’s supervisors during the testimony of the undercover officers. We agree. "The United States Supreme Court has articulated
We find no merit to the defendant’s additional claim that the Supreme Court erred in summarily denying that branch of his omnibus motion which was to suppress the physical evidence seized from him at the time of his arrest. The Supreme Court properly determined that the conclusory allegations made upon information and belief by the defendant’s attorney were insufficient to raise any factual issues to be resolved at a hearing (see, People v Mendoza, 82 NY2d 415, 429).
In light of our determination, we need not address the defendant’s remaining contentions. Miller, J. P., Lawrence, Altman and Krausman, JJ., concur.