PEOPLE v. BASS

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Steven BASS, Defendant-Appellant.

Decided: March 25, 1999

NARDELLI, J.P., WALLACH, LERNER and RUBIN, JJ. Erin Koenen, for Respondent. Martin M. Lucente, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Dorothy Cropper, J., at suppression hearing;  Bonnie Wittner, J., at jury trial and sentence), rendered May 7, 1993, convicting defendant of criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to two concurrent terms of 6 to 12 years, unanimously reversed, on the law, and the matter remanded for a new trial.

 Contrary to the prosecution's contentions, the issue of exclusion was properly preserved for appellate review when defendant referred to a specific family member who had a clear and definite desire to be present (cf., People v. Glover, 256 A.D.2d 36, 683 N.Y.S.2d 4;  People v. Ford, 235 A.D.2d 285, 654 N.Y.S.2d 2, lv. denied 89 N.Y.2d 1035, 659 N.Y.S.2d 865, 681 N.E.2d 1312). Defense counsel specifically identified Alicia Connelly as defendant's “common-law wife”, and noted her presence in the courtroom prior to the court's ruling.   The People have raised no objection to defendant's characterization of Alicia Connelly as a common-law wife/family member.   Thus, the trial court was on express notice that the ruling would result in the exclusion of a family member who was actually present at the trial and whom defendant wished to have in the courtroom.   Where the trial court is aware that the defendant's relatives have been attending the proceeding or that the defendant would like certain family members present, exclusion of those individuals is permitted only when necessary to protect the interest advanced by the People in support of closure (People v. Nieves, 90 N.Y.2d 426, 430, 660 N.Y.S.2d 858, 683 N.E.2d 764).   No showing had been made that Ms. Connelly posed any threat to the officer's safety or operations.   Thus, the trial court erroneously excluded Ms. Connelly from the courtroom, thereby violating defendant's right to a public trial.

We have considered and rejected defendant's remaining arguments.

MEMORANDUM DECISION.