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DEFENDANT’S FAMILY MEMBERS SHOULD NOT HAVE BEEN EXCLUDED FROM THE COURTROOM DURING THE TESTIMONY BY THE UNDERCOVER OFFICERS, CONVICTIONS REVERSED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the trial court should not have excluded defendant’s family members from the trial during the testimony of the undercover officers:

Following a Hinton hearing at which there was no testimony that defendant or any member of his family threatened or otherwise posed a threat to either of two testifying undercover officers, defense counsel requested that family members be permitted to attend the officers’ trial testimony. Although the prosecutor made no argument in opposition to this application, the court denied it, without making any supporting findings. This was error. “[A]n order of closure that does not make an exception for family members will be considered overbroad, unless the prosecution can show specific reasons why the family members must be excluded” … . We reject the People’s argument that the defense was obligated to identify specific family members who might attend the proceedings, in the absence of any request by the prosecutor or the court that it do so, as incompatible with the “presumption of openness” that applies in this context … . Moreover the court did not ask any questions to clarify which family members wanted to attend before issuing the closure order. People v Rivera, 2020 NY Slip Op 01035, First Dept 2-13-20

 

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