People v. Green

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kay, J.), rendered February 23, 1994, convicting him of criminal sale of a controlled substance in the third degree and criminal possession 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 ordered.

The defendant contends 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 from the courtroom members of his family during the testimony of an undercover police officer. We agree. At the conclusion of a hearing pursuant to People v Hinton ( 31 NY2d 71 , cert denied 410 US 911 ), the defendant objected to the exclusion of his mother and several cousins. When the defendant objects to the exclusion of a particular individual, the party seeking exclusion must prove that it is necessary to protect an overriding interest of the witness (see, People v Kin Kan, 78 NY2d 54 , 58-59). Nothing in this record supports the exclusion of the defendant’s family, thereby rendering the closure "broader than constitutionally tolerable” (People v Gutierez, 86 NY2d 817 , 818).

In view of our determination we need not reach the defendant’s remaining contentions. Mangano, P. J., Bracken, Sullivan and Rosenblatt, JJ., concur.