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

The PEOPLE, etc., Respondent, v. David SERRANO, Appellant.

Decided: July 31, 2000

CORNELIUS J. O'BRIEN, J.P., WILLIAM C. THOMPSON, THOMAS R. SULLIVAN and MYRIAM J. ALTMAN, JJ. M. Sue Wycoff, New York, N.Y. (Jeffrey I. Richman of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Lori Glachman of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (G. Beldock, J.), rendered May 1, 1995, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh 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.

After a 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 trial court improperly excluded from the courtroom spectators that the defendant asserted were his “common law wife” and two children.   The People failed to demonstrate a substantial probability that the woman and children posed a threat to the undercover officer's safety (see, People v. Nieves, 90 N.Y.2d 426, 660 N.Y.S.2d 858, 683 N.E.2d 764;  People v. Rentas, 253 A.D.2d 469, 677 N.Y.S.2d 798).   Accordingly, the defendant is entitled to a new trial.


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