PEOPLE v. GUTIEREZ, 86 N.Y.2d 817 (1995)

657 N.E.2d 491, 633 N.Y.S.2d 470

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. BLAS GUTIEREZ, Appellant.

Court of Appeals of the State of New York.
Decided September 19, 1995

Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Michael A. Corriero, J.

Page 818

Jeffrey A. Udell, New York City, Richard M. Greenberg, an E. Joshua Rosenkranz for appellant.

Robert M. Morgenthau, District Attorney of New York County, New York City (Lisa H. Blitman of counsel), for respondent.

MEMORANDUM.

The order of the Appellate Division should be reversed and a new trial ordered. Defendant was convicted, after a jury trial, of criminal sale of a controlled substance in the third degree. On appeal, defendant challenges the court’s closure of the trial to the public during the undercover officer’s testimony. The trial court erred in excluding defendant’s family members from the courtroom. The record indicates that the trial court’s closure of the courtroom excluding defendant’s close family members was broader than constitutionally tolerable and, thus, constituted a violation of defendant’s overriding right to a public trial (see, People v Martinez, 82 N.Y.2d 436, 444; People v Kin Kan, 78 N.Y.2d 54, 58; see also, Vidal v Williams, 31 F.3d 67, 69). Although the undercover officer indicated that he feared his life and ongoing drug investigations would be jeopardized, he never claimed to hold those fears with respect to defendant’s wife and children and did not otherwise advance any valid ground for excluding defendant’s family during the officer’s testimony.

Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order reversed, etc.