PEOPLE v. RENTAS

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

The PEOPLE, etc., Respondent, v. George RENTAS, Appellant.

Decided: August 10, 1998

Before MILLER, J.P., and KRAUSMAN, McGINITY and LUCIANO, JJ. Lynn W.L. Fahey, New York City (Katherine R. Schaefer, of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie and Ann Bordley, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Barbaro, J.), rendered March 17, 1997, convicting him of criminal sale of a controlled substance in the third degree (three counts), 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.

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 girlfriend 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 girlfriend.   When a 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 returning to the area in which the defendant was arrested, nothing in the record demonstrates that the girlfriend resided or worked in that area.   Nor did the People present sufficient evidence that the girlfriend posed a threat to the officer.   Therefore, the defendant is entitled to a new trial.

MEMORANDUM BY THE COURT.

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