PEOPLE v. PEREZ

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

The PEOPLE, etc., Respondent, v. Nelson PEREZ, Appellant.

Decided: July 27, 1998

Before BRACKEN, J.P., COPERTINO, McGINITY and LUCIANO, JJ. M. Sue Wycoff, New York, N.Y. (Michael C. Taglieri of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Traci R. Turner of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Fisher, J.), rendered July 30, 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 sister 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 sister.   When a defendant seeks to limit closure of the courtroom 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 and in which the defendant's sister resided, nothing in the record demonstrates, and the Supreme Court did not find, that the defendant's sister posed a threat to the officer.   Therefore, the defendant is entitled to a new trial.

MEMORANDUM BY THE COURT.

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