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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: February 25, 1999

Before:  CARDONA, P.J., MIKOLL, CREW III 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.

When this matter was last before us, we found that County Court erred in closing the courtroom to the public during the undercover officer's testimony at the Wade hearing because the People failed to make the required factual showing that an exception to the norm of a public trial was justified (254 A.D.2d 626, 681 N.Y.S.2d 613).   Consequently, we held the appeal in abeyance and remitted the matter for a new suppression hearing.

 County Court thereafter held a hearing to determine whether the People could make the necessary factual showing justifying the closure of the courtroom at the prior Wade hearing.   While such a procedure was not in accordance with our prior directive that a new suppression hearing be held, we note that counsel for defendant, who had represented defendant throughout the prior proceedings, made no objection to the hearing as held and participated fully therein.   Accordingly, we find no error in that regard.   Additionally, having reviewed the record of such hearing, we find that the undercover officer provided sufficient evidence to justify County Court's previous finding that the People made the factual showing necessary to warrant closure of the prior Wade hearing.

 We are of a different view, however, with regard to defendant's contention that County Court improperly permitted the use of defendant's oral statements to the undercover officer to rebut defendant's defense of entrapment.   Following defendant's testimony, in which she claimed to have been entrapped, the People offered the testimony of the undercover officer concerning defendant's statements to him during an interview following her arrest.   The People conceded that such statements would have been inadmissible on their direct case.   Defense counsel objected to the admission of such evidence inasmuch as defendant had not been afforded discovery of the statements pursuant to a court order which provided, inter alia:

The prosecution is ordered to provide the defendant with the following particulars and items of discovery * * * within 20 days of this order:

 * * *

2. All written, recorded or oral statements made by a defendant * * * to a public servant engaged in law enforcement activity or to his agent.1

The People contended at trial and argue on this appeal that the foregoing requirement relates only to statements to which CPL 710.30 applies.   Asserting that the statements were inadmissible as evidence-in-chief and would not be offered as such, they argued that the statements were not subject to the provisions of CPL 710.30 and were, therefore, exempt from County Court's discovery order.   We disagree.

 The order is self-explanatory and clear on its face and does not limit the statements to which defendant is entitled.   Indeed, the order tracks the very language contained in CPL 240.20(1)(a) which is not limited to statements intended to be offered by the People “at trial”, i.e., statements offered as part of the People's direct case (see, CPL 240.10[4] ).   In short, the People were required to comply with both defendant's demand to produce and the discovery order by disclosing to defendant the oral statements made by her to the undercover officer.   Defendant's objection to the proffered evidence should have been sustained inasmuch as preclusion would appear to be the only reasonable sanction for this discovery violation (see, CPL 240.70;  cf., People v. Kelly, 62 N.Y.2d 516, 521, 478 N.Y.S.2d 834, 467 N.E.2d 498;  People v. Lunney, 84 Misc.2d 1090, 378 N.Y.S.2d 559).   Accordingly, there must be a reversal and a new trial at which such evidence will be inadmissible.

ORDERED that the judgment is reversed, on the law, and matter remitted to the County Court of Sullivan County for a new trial.


1.   We note that defendant also made a demand to produce pursuant to CPL 240.10(1) requesting the same material referred to in the discovery order.



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