Opinion
December 29, 1995
Appeal from the Supreme Court, Kings County (Wade, J.).
Ordered that the judgment is reversed, on the law, and a new trial is 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 a member of his family from the courtroom 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 sister and her boyfriend. When a defendant objects to the exclusion of a particular individual, the party seeking exclusion must prove that it is necessary to protect an overridding interest of the witness (see, People v Gutierez, 86 N.Y.2d 817; see also, People v Kin Kan, 78 N.Y.2d 54, 58-59; People v Green, 221 A.D.2d 363).
In the case at bar, a sufficient record was established to justify the closure of the courtroom to the general public based upon the officer's testimony that he would be returning to the area of the defendant's arrest, had received threats, and had "lost subjects" (i.e., persons from whom he had purchased drugs who had not been apprehended) (see, People v Martinez, 82 N.Y.2d 436; People v Mitchell, 209 A.D.2d 444; People v Skinner, 204 A.D.2d 664). However, the People failed to establish that the defendant's sister could be a threat to the undercover officer, especially in view of the fact that the sister's residence was not near the area where the defendant was arrested (see, Vidal v Williams, 31 F.3d 67, cert denied ___ US ___, 115 S Ct 778; cf., People v Dorcas, 218 A.D.2d 813). Accordingly, the exclusion of the defendant's sister resulted in a closure which was "broader than constitutionally tolerable" (People v Gutierez, 86 N.Y.2d 816, 817, supra). Therefore, a new trial is required. Balletta, J.P., O'Brien, Santucci and Florio, JJ., concur.