Opinion
June 12, 1989
Appeal from the Supreme Court, Richmond County (Felig, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact have been raised or considered.
The testimony of the undercover officer was heard in the cleared and closed courtroom. "[N]o closing can be tolerated that is not preceded by an inquiry careful enough to assure that the defendant's right to a public trial is not being sacrificed for less than compelling reasons" (People v. Jones, 47 N.Y.2d 409, 414-415, cert denied 444 U.S. 946). Such a closing is per se reversible error (People v. Romain, 137 A.D.2d 848). Here, the court made no inquiry of the witness prior to closure. Nor did it articulate specific findings sufficient to justify closing the courtroom. This was error (see, People v. Cuevas, 50 N.Y.2d 1022; People v. Baldwin, 130 A.D.2d 666, 667). Thus, the defendant's conviction is reversed as no prejudice need be demonstrated, and the harmless error doctrine is not applicable to this error (see, People v. Jones, supra).
The defendant also contends that the court's decision to discharge a juror was in error. That juror requested to be discharged midway through the trial, claiming that the trial's unexpected length would cause her to forfeit a deposit of approximately $1,000 she had made towards her vacation airfare and hotel reservations.
The defendant's contention in this regard is without merit. The decision to discharge the juror was within the broad discretion of the court and was made after a thorough inquiry and a recitation of the facts and reasons for invoking the statutory authorization of CPL 270.35 (see, People v. Page, 72 N.Y.2d 69, 73). There was, therefore, no error (see, People v. Burns, 118 A.D.2d 864). Thompson, J.P., Lawrence, Rubin and Balletta, JJ., concur.