Opinion
Argued May 30, 2000.
July 31, 2000.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (G. Beldock, J.), rendered May 1, 1995, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree (two counts), upon a jury verdict, and imposing sentence.
M. Sue Wycoff, New York, N.Y. (Jeffrey I. Richman of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Lori Glachman of counsel), for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., WILLIAM C. THOMPSON, THOMAS R. SULLIVAN, MYRIAM J. ALTMAN, JJ.
DECISION ORDER
ORDERED that the judgment is reversed, on the law, and a new trial is ordered.
After a Hinton hearing (see, People v. Hinton, 31 N.Y.2d 71, cert denied 410 U.S. 911), the trial court improperly excluded from the courtroom spectators that the defendant asserted were his "common law wife" and two children. The People failed to demonstrate a substantial probability that the woman and children posed a threat to the undercover officer's safety (see, People v. Nieves, 90 N.Y.2d 426; People v. Rentas, 253 A.D.2d 469). Accordingly, the defendant is entitled to a new trial.