PEOPLE v. PENA

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

The PEOPLE, etc., respondent, v. Rafael PENA, appellant.

Decided: February 22, 1999

CORNELIUS J. O'BRIEN, J.P., DANIEL W. JOY, GABRIEL M. KRAUSMAN and DANIEL F. LUCIANO, JJ. M. Sue Wycoff, New York, N.Y. (Michelle Fox of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Rona I. Kugler of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (McDonald, J.), rendered June 12, 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 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 wife and children 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 objected to the exclusion of his family.   When the defendant seeks to limit closure to permit the attendance of certain individuals, the People must present evidence that those individuals threaten the safety of the witness (see, 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. 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;  People v. Johnson, 222 A.D.2d 456, 635 N.Y.S.2d 49).   Although the undercover officer would be immediately returning to the area in which the defendant was arrested, nothing in the record demonstrates, nor did the Supreme Court make a finding, that the defendant's wife and/or children posed a threat to the officer.   Therefore, the defendant is entitled to a new trial.

MEMORANDUM BY THE COURT.

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