Opinion
August 29, 1994
Appeal from the Supreme Court, Kings County (Barasch, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact have been raised or considered.
Contrary to the defendant's contentions, we agree with the Supreme Court's finding that the subject police report did not constitute Rosario material because its contents were not related to the subject matter of the witness's testimony (see, People v. Bailey, 200 A.D.2d 677; People v. Rios, 182 A.D.2d 843; People v. Watkins, 157 A.D.2d 301, 313). However, in light of the decision of the Court of Appeals in People v. Martinez ( 82 N.Y.2d 436) in November 1993, we conclude that the Supreme Court abused its discretion in closing the courtroom during the testimony of the two undercover officers. The record neither reflects that the undercover officers were still operating in the locale of the defendant's arrest nor that they expected to return there. Indeed, the sole basis for closure proffered by the prosecution was that each undercover had "lost subjects" (unapprehended individuals from whom they had purchased drugs) in the Borough of Brooklyn. This perfunctory showing by the prosecutor was not sufficiently particularized to the facts of this case and, thus, was inadequate to justify closure (see, People v. Martinez, supra; cf., People v. Jamison, 203 A.D.2d 385; People v. Thompson, 202 A.D.2d 454). Bracken, J.P., Miller, O'Brien and Pizzuto, JJ., concur.