Opinion
October 16, 1995
Appeal from the Supreme Court, Kings County (Mastro, J.).
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 N.Y.2d 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).
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 N.Y.2d 71, cert denied 410 U.S. 911) was insufficient to satisfy the criteria of People v. Martinez ( 82 N.Y.2d 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 N.Y.2d 54; People v. Gutierez, 86 N.Y.2d 817; People v Davis, 210 A.D.2d 345). Rosenblatt, J.P., Miller, Ritter and Friedmann, JJ., concur.