People v. Herrera

211 A.D.2d 530, 622 N.Y.S.2d 438, 1995 N.Y. App. Div. LEXIS 418

Opinion

Judgment, Supreme Court, Bronx County (Joseph Cerbone, J.), rendered September 10, 1992, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to 6 to 12 years, unanimously reversed, on the law, and the matter is remitted for a new trial.

Defendant’s claim that closure of the courtroom deprived him of his right to a public trial was preserved for review in view of the trial court’s grant of the prosecutor’s application prior to affording defense counsel the opportunity to interpose his general objection (People v Gross, 179 AD2d 138, 140-141, lv denied 80 NY2d 832).

As the People concede, the bare assertion of the prosecutor that the witness was still an undercover officer was insufficient to support the closure (People v Martinez, 82 NY2d 436; People v Cuevas, 50 NY2d 1022). Concur—Rosenberger, J. P., Asch, Rubin and Nardelli, JJ.