The First Department reversed defendant’s conviction, finding that defendant’s family was improperly excluded from the courtroom:
Defendant’s family members were improperly excluded from the closed courtroom during the testimony of an undercover officer. It is undisputed that the evidence presented at a Hinton hearing did not demonstrate that the “exclusion of [defendant’s family members was] necessary to protect the interest advanced by the People in support of closure” … . The People ask us to interpret the record as indicating that the court did not, in fact, exclude defendant’s relatives. While the record arguably presents a degree of ambiguity in this regard, in that both the prosecutor, in the course of his argument about the officer’s efforts to conceal his identity, and the court, in discussing its decision, mentioned “the general public,” these ambiguous and equivocal indications are insufficient to persuade us that defendant’s family members were in fact allowed to be present.
The prosecutor requested that the courtroom be closed “entirely,” without making any specific provision for family members, and asserted that the closure requested was not “overly broad.” Defense counsel specifically asserted the right of the family members to be present. The court then granted the People’s application, making no specific allowance or arrangements for the family members to attend. Under these circumstances, we cannot fairly read the record to indicate that the presence of family members was permitted. People v Moore, 2016 NY Slip Op 08447, 1st Dept 12-15-16
CRIMINAL LAW (DEFENDANT’S FAMILY IMPROPERLY EXCLUDED FROM THE COURTROOM, CONVICTION REVERSED)/CLOSURE OF COURTROOM (DEFENDANT’S FAMILY IMPROPERLY EXCLUDED FROM THE COURTROOM, CONVICTION REVERSED)