PEOPLE v. MORALES (1997)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lebowitz, J.), rendered April 29, 1996, convicting him of criminal sale of a controlled substance in the third degree, 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, and the People correctly concede, that he was denied his right to a public trial because the Supreme Court excluded from the courtroom his attorney's Legal Aid Society supervisor during the testimony of an undercover police officer.

When the defendant's trial counsel sought to have his supervisor present in the courtroom, the People failed to meet their burden of proving that the supervisor “somehow jeopardized an overriding interest of the undercover police officer”, and the trial court failed to make findings to support that conclusion (People v. Bess, 220 A.D.2d 603, 604, 632 N.Y.S.2d 634;  People v. Mercer, 204 A.D.2d 741, 612 N.Y.S.2d 650).   We note that Bess and Mercer were decided well before the trial in this case.   The defendant is entitled to a new trial (see, People v. Scott, 237 A.D.2d 544, 656 N.Y.S.2d 908).

MEMORANDUM BY THE COURT.