PEOPLE v. GAYLE (1997)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Douglass, J.), rendered May 23, 1995, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.   No questions of fact have been raised or considered.

 The defendant correctly contends that he was denied his right to a public trial (see, U.S. Const., 14th 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 girlfriend from the courtroom during the testimony of an undercover officer.   When the defendant objected to her exclusion the People offered no evidence that she would be a threat to the officer, nor did the court make findings that the girlfriend would pose a threat to the officer (see, People v. Kin Kan, 78 N.Y.2d 54, 58-59, 571 N.Y.S.2d 436, 574 N.E.2d 1042;  People v. Gutierez, 86 N.Y.2d 817, 633 N.Y.S.2d 470, 657 N.E.2d 491;  People v. Pankey, 219 A.D.2d 737, 631 N.Y.S.2d 766;  cf., People v. Dorcas, 218 A.D.2d 813, 630 N.Y.S.2d 796).   Therefore, the defendant is entitled to a new trial.

 The trial court also erred by permitting the People to introduce evidence of the defendant's prior sale of drugs at the same location during the 21-month period preceding the incident giving rise to the present charges, as relevant to the defendant's identification because of the unique modus operandi involved in selling drugs at the same location.   Such behavior was not sufficiently unique to warrant the introduction of these prior uncharged crimes (see, People v. Beam, 57 N.Y.2d 241, 251, 455 N.Y.S.2d 575, 441 N.E.2d 1093;  People v. Condon, 26 N.Y.2d 139, 144, 309 N.Y.S.2d 152, 257 N.E.2d 615).

MEMORANDUM BY THE COURT.