Opinion
November 6, 1995
Appeal from the Supreme Court, Kings County (Kay, J.).
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 N.Y.2d 409, cert denied 444 U.S. 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 N.Y.2d 71, cert denied 410 U.S. 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 N.Y.2d 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 N.Y.2d 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.