PEOPLE v. RIVERA (2001)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ruchelsman, J.), rendered February 23, 1999, convicting him of criminal possession of a controlled substance in the third degree (two counts), upon a jury verdict, and imposing sentence.

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, U.S. Const., 6th Amend.;   Civil Rights Law § 12;  Judiciary Law § 4;  People v. Jones, 47 N.Y.2d 409, 418 N.Y.S.2d 359, 391 N.E.2d 1335, cert. denied 444 U.S. 946, 100 S.Ct. 307, 62 L.Ed.2d 315), because the Supreme Court excluded his mother, girlfriend, and child from the courtroom during the testimony of an undercover officer.   We agree.   During the Hinton hearing (see, People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885, 286 N.E.2d 265, cert. denied 410 U.S. 911, 93 S.Ct. 970, 35 L.Ed.2d 273), the defendant argued against closure and to allow his mother, girlfriend, and child to be present.   Thus, to properly exclude them from the courtroom, the People were required to present evidence that they threatened the safety of the undercover officer (see, People v. Glover, 93 N.Y.2d 1010, 697 N.Y.S.2d 551, 719 N.E.2d 910;  People v. Nieves, 90 N.Y.2d 426, 660 N.Y.S.2d 858, 683 N.E.2d 764;  People v. Gutierez, 86 N.Y.2d 817, 633 N.Y.S.2d 470, 657 N.E.2d 491;  People v. Kin Kan, 78 N.Y.2d 54, 571 N.Y.S.2d 436, 574 N.E.2d 1042;  People v. Perez, 252 A.D.2d 593, 676 N.Y.S.2d 215;  People v. Vargas, 244 A.D.2d 367, 663 N.Y.S.2d 649;  People v. Scott, 237 A.D.2d 544, 656 N.Y.S.2d 908;  People v. Gayle, 237 A.D.2d 532, 655 N.Y.S.2d 581).   Although the undercover officer would be returning immediately to the area in which the defendant was arrested, nothing in the record demonstrated that the defendant's mother, girlfriend, or child posed a threat to the undercover officer (see, People v. Perez, supra;  People v. Vargas, supra).   Therefore, the defendant is entitled to a new trial.