People v. Scott

237 A.D.2d 544, 656 N.Y.S.2d 908, 1997 N.Y. App. Div. LEXIS 2806

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Robinson, J.), rendered August 22, 1994, 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. No questions of fact have been raised or considered.

The defendant contends, and the People concede, that he was denied his right to a public trial (see, US Const 6th Amend; Civil Rights Law § 12; Judiciary Law § 4; People v Jones, 47 NY2d 409, cert denied 444 US 946) because the Supreme Court excluded his girlfriend and their child during the testimony of an undercover police officer. When the defendant objected to the exclusion of his family, the People offered no evidence that the family could be a threat to the officer. Nor did the Supreme Court make findings that the family would be a threat (see, People v Kin Kan, 78 NY2d 54, 58-59; People v Gutierez, 86 NY2d 817; cf., People v Dorcas, 218 AD2d 813). Thus, the defendant is entitled to a new trial.

In light of our determination herein, we do not address the defendant’s remaining contention. Copertino, J. P., Sullivan, Pizzuto and Krausman, JJ., concur.