Opinion
Decided August 26, 1999
Appeal from the Justice of the Appellate Division of the Supreme Court in the First Judicial Department (Jerome Hornblass, J.)
Jonathan H. Oberman, New York City, and Stanley Neustadter for appellant.
Robert M. Morgenthau, District Attorney of New York County, New York City ( Theresa A. Foudy of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed, and a new trial ordered.
The record is insufficient to establish a "`substantial probability' that the officer's safety would be jeopardized" by the presence of defendant's brother and sister in the courtroom ( People v. Nieves, 90 N.Y.2d 426, 431).
Chief Judge KAYE and Judges BELLACOSA, SMITH, LEVINE, CIPARICK, WESLEY and ROSENBLATT concur in memorandum.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals ( 22 NYCRR 500.4), order reversed, etc.