PEOPLE v. FIELDS

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

The PEOPLE of the State of New York, Respondent, v. Lorna FIELDS, Appellant.

Decided: October 29, 1998

Before CARDONA, P.J., MIKOLL, CREW, WHITE and CARPINELLO, JJ. Carl J. Silverstein, Monticello, for appellant. Stephen F. Lungen, District Attorney (Karen Moss of counsel), Monticello, for respondent.

Appeal from a judgment of the County Court of Sullivan County (La Buda, J.), rendered June 20, 1997, upon a verdict convicting defendant of two counts of the crime of criminal sale of a controlled substance in the second degree.

Defendant was indicted and charged with two counts of criminal sale of a controlled substance in the second degree.   Following defendant's unsuccessful attempt to suppress identification testimony, she was tried and convicted as charged.

 On this appeal, defendant contends, inter alia, that County Court erred in closing the courtroom to the public during the undercover officer's testimony at the Wade hearing.   We agree.   It is axiomatic that a defendant has a constitutional and statutory right to a public trial (see, U.S. Const. 6th Amend.;   Civil Rights Law § 12;  Judiciary Law § 4), which right applies to suppression hearings as well (see, Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31).   While that right is not absolute and in some instances must give way to other interests (see, People v. Nieves, 90 N.Y.2d 426, 429, 660 N.Y.S.2d 858, 683 N.E.2d 764), in order to justify closure here the People were required to show that the undercover officer was still engaged in undercover buys and that his public testimony would either jeopardize his safety or compromise the integrity of an ongoing investigation (see, People v. Jefferson, 248 A.D.2d 815, 816-818, 670 N.Y.S.2d 239, 241-242).

 Instead, the District Attorney, in support of his motion for closure, simply stated that “[t]he person I'm calling is the undercover police officer and * * * this officer is * * * presently in that same capacity and working in that capacity.   I would like this courtroom sealed in that regard.”   Such statement hardly constitutes the required factual showing that an exception to the norm of a public trial was justified (see, People v. Jones, 47 N.Y.2d 409, 415, 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).   Accordingly, the appeal must be held in abeyance and the matter remitted to County Court for a new suppression hearing.

ORDERED that the decision is withheld, and matter remitted to the County Court of Sullivan County for further proceedings not inconsistent with this court's decision.

CREW, Justice.

CARDONA, P.J., MIKOLL, WHITE and CARPINELLO, JJ., concur.

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