
    [683 NE2d 764, 660 NYS2d 858]
    The People of the State of New York, Respondent, v Milton Nieves, Appellant.
    Argued June 4, 1997;
    decided July 1, 1997
    
      POINTS OF COUNSEL
    
      Steven Berko, New York City, and Daniel L. Greenberg for appellant.
    I. The court violated appellant’s right to a public trial by (a) closing the courtroom, both to the general public and to appellant’s wife and children, based upon the undercover officer’s generalized area of operation and generalized concern for his safety and (b) failing to consider reasonable alternatives to the courtroom closure. (Waller v Georgia, 467 US 39; Press-Enterprise Co. v Superior Ct., 478 US 1; People v Martinez, 82 NY2d 436; People v Kin Kan, 78 NY2d 54; People v Jelke, 308 NY 56; People v Hinton, 31 NY2d 71, 410 US 911; Matter of Oliver v Postel, 30 NY2d 171; People v Jones, 47 NY2d 409; Vidal v Williams, 31 F3d 67; People v Alvarado, 223 AD2d 712.) II. Appellant’s exclusion from a side-bar colloquy during jury selection, where the court questioned a potential juror about her familiarity with the crime scene, violated his right to be present at a material stage of the trial. (People v Sloan, 79 NY2d 386; People v Antommarchi, 80 NY2d 247; People v Mitchell, 80 NY2d 519; People v Maher, 89 NY2d 318; People v Feliciano, 88 NY2d 18; People v Vargas, 88 NY2d 363; People v Morris, 217 AD2d 561; People v Foster, 217 AD2d 558; People v Sprowal, 84 NY2d 113.)
    
      Robert M. Morgenthau, District Attorney of New York County, New York City (Grace Vee and Mark Dwyer of counsel), for respondent.
    I. The trial court properly closed the courtroom to the general public, including defendant’s family, during the testimony of an undercover detective, who was then actively engaged in undercover operations in the same location as defendant’s arrest and near where defendant’s family resided. That is true, under this Court’s settled precedent, even though the trial court did not, sua sponte, expressly consider the alternatives to closure which defendant proposes for the first time before this Court. (People v Martinez, 82 NY2d 436; Ayala v Speckard, 102 F3d 649; In re Oliver, 333 US 257; People v Hinton, 31 NY2d 71, 410 US 911; People v Jelke, 308 NY 56; People v Kin Kan, 78 NY2d 54; People v Jones, 47 NY2d 409, 444 US 946; Waller v Georgia, 467 US 39; Press-Enterprise Co. v Superior Ct. of Cal., 464 US 501; People v Richards, 77 NY2d 969.) II. Defendant’s absence from a side-bar conference with one prospective juror provides no basis for a reversal of his conviction since jury selection in this case occurred before this Court’s decision in People v Antommarchi (80 NY2d 247 [1992]) and the prospective juror was, in any event, excused for cause. (People v Sloan, 79 NY2d 386; People v Ward, 227 AD2d 508, 88 NY2d 970; People v Mitchell, 80 NY2d 519; People v Pepper, 53 NY2d 213; People v Camacho, 209 AD2d 166, 84 NY2d 1029; People v Lawrence, 209 AD2d 165, 84 NY2d 1034; People v Sprowal, 84 NY2d 113; People v Morales, 80 NY2d 450; People v Roman, 88 NY2d 18.)
   OPINION OF THE COURT

Chief Judge Kaye.

In an appeal centering on the issue of courtroom closure during an undercover officer’s testimony in a "buy-and-bust” case, we conclude that the record was insufficient to establish a substantial probability that the officer’s safety would be jeopardized by allowing defendant’s wife and children to remain in the courtroom. Their exclusion therefore violated defendant’s constitutional right to a public trial, requiring reversal of the Appellate Division’s order and a new trial.

Defendant was arrested for allegedly selling two glassine envelopes of heroin to an undercover officer for $26 at 166th Street between Amsterdam and Edgecomb Avenues in Manhattan. Over objection, the prosecutor moved to close the courtroom during the testimony of the undercover officer.

The officer testified at the ensuing Hinton hearing (People v Hinton, 31 NY2d 71, cert denied 410 US 911) that he presently conducted undercover buy-and-bust operations three to four times a week in the Manhattan area between 155th to 180th Streets, specifically in the location of 166th Street and Amsterdam Avenue, and that he feared for his safety should his identity be revealed. He related a story he had heard three years earlier about another undercover officer who was shot after being recognized in this neighborhood. The officer further testified that he did not work in the area of the courthouse and that he had never encountered former "buy” subjects while there to testify. He also used the regular courthouse elevator when testifying. The officer expressed no concern about defendant’s family members.

The court closed the courtroom during the undercover’s testimony, specifically excluding defendant’s wife and children. In response to the People’s argument that defendant’s wife posed a particular danger to the officer, the court noted that there was no indication that she was involved in any way with drugs or drug dealers and that "it’s somewhat of a large leap * * * that she would of course take note of this particular officer independently[ ] and spread it around the neighborhood.”

The court nevertheless excluded defendant’s wife, based on the prosecutor’s earlier report that a court reporter claimed to have seen her speaking to a prospective juror during voir dire. Defense counsel had previously explained that the juror had already been excused, and that defendant’s wife had merely responded to a request for the time. The court did not make any inquiry of defendant’s wife, the juror or the court reporter. As for defendant’s children, the trial court concluded that they should be excluded from the courtroom "simply because they are children, and don’t understand the concept of confidentiality.”

Defendant was convicted of criminal possession and criminal sale of a controlled substance in the third degrees, and the Appellate Division affirmed. In upholding the exclusion of defendant’s family, the court noted that the site of defendant’s arrest was 12 blocks from his residence, and because defendant’s relatives resided in the very neighborhood where the officer worked undercover, it was proper to bar them from the courtroom. The court further concluded that defendant’s wife had "demonstrated both a lack of good judgment and a willingness to disobey judicial directives.” (232 AD2d 305, 306.) We now reverse.

While a defendant’s Sixth Amendment right to a public trial may give way to other rights or interests, the Supreme Court of the United States and this Court have repeatedly cautioned that trial courts should exercise their discretionary power to exclude members of the public sparingly and only after balancing the competing interests "with special care” (Waller v Georgia, 467 US 39, 45; People v Kin Kan, 78 NY2d 54, 57, rearg denied 78 NY2d 1008; see also, People v Ramos, 90 NY2d 490 [decided today]). Before a courtroom may be closed, the party seeking closure must advance an overriding interest that is likely to be prejudiced, closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the courtroom and it must make findings adequate to support the closure (Waller v Georgia, 467 US at 48, supra; People v Martinez, 82 NY2d 436, 442).

In People v Martinez (82 NY2d at 444, supra), also a buy-and-bust case, we held that the trial court, before closing the courtroom, was not obligated to ask a defendant to identify any family members who would like to attend the trial (see also, People v Ramos, 90 NY2d 490, supra [trial court not obligated sua sponte to suggest reasonable alternatives to closure]). We noted there, however, that "[t]here had been no unidentified spectators in the courtroom from the time the trial started, and defendant made no mention of particular friends or family he wished to have in attendance” (People v Martinez, supra, at 444). Where, by contrast, the trial court is aware that the defendant’s relatives have been attending the proceedings or that the defendant would like to have certain family members present, exclusion of those individuals must be necessary to protect the interest advanced by the People in support of closure (see, Vidal v Williams, 31 F3d 67, 69 [2d Cir 1994], cert denied 513 US 1102; People v Gutierez, 86 NY2d 817; People v Kin Kan, 78 NY2d 54, supra; see also, In re Oliver, 333 US 257, 271-272 [acknowledging a special concern for guaranteeing the attendance of the accused’s family members]). Furthermore, the trial court’s reasons for excluding the defendant’s family must be "demonstrated and documented” in the record (People v Kin Kan, 78 NY2d at 57).

In People v Gutierez (86 NY2d at 818, supra), for example, the undercover officer testified that he feared that his life and ongoing buy-and-bust investigations would be jeopardized by open-court testimony. This Court nevertheless held that it was error for the Trial Judge to exclude the defendant’s family members from the courtroom during the officer’s testimony, since he "never claimed to hold those fears with respect to defendant’s wife and children and did not otherwise advance any valid ground for excluding defendant’s family” (id.). Under the circumstances, the closure order was broader than necessary.

While the trial court may have been justified in excluding the general public from the courtroom during the officer’s testimony (see, People v Ramos, 90 NY2d 490, supra; People v Martinez, 82 NY2d 436, supra), it was error to exclude defendant’s family members. As in Gutierez, the undercover officer here expressed no trepidation about testifying before defendant’s wife and children. Indeed, the officer never even mentioned defendant’s family.

Nor does the record contain any other valid ground for their exclusion. The mere allegation that defendant’s wife had a brief conversation with a prospective juror certainly did not establish that she was inclined to harm a police officer. To the contrary, the trial court itself found no suggestion that defendant’s wife was involved in the sale of drugs and, furthermore, that the likelihood that she would reveal the officer’s true identity was remote. The trial court, moreover, made no attempt to determine the substance of the purported conversation or whether, as counsel claimed, the juror had already been excused. The record therefore does not support the Appellate Division’s conclusion that defendant’s wife had demonstrated a willingness to disobey judicial directives.

Based on its own conclusory generalizations about the inability of children to maintain confidentiality, the trial court also excluded defendant’s children from the courtroom. It did so, however, without adducing any facts as to the ability of the children to preserve the witness’ identity. No inquiry was made of either the children or their parents. Indeed, the record does not even reveal whether they were toddlers or teenagers.

Because the record here was insufficient to establish a "substantial probability” that the officer’s safety would be jeopardized by the presence of defendant’s wife and children during his testimony (see, Press-Enterprise Co. v Superior Ct., 478 US 1, 14; People v Ramos, 90 NY2d 490, supra), the closure order was broader than necessary to protect the People’s interest. We note in this regard that the area of defendant’s residence was not discussed at the Hinton hearing and did not form any part of the trial court’s decision to order closure. Therefore, the Appellate Division’s reliance on the fact that defendant’s family lived within 12 blocks of the officer’s area of operations to justify exclusion retroactively was improper (see, Waller v Georgia, 467 US at 48, supra [trial court must make factual findings adequate to support the closure]; see also, People v Kin Kan, 78 NY2d at 59, supra).

Because reversal is mandated on this ground alone, we do not address defendant’s remaining claims.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Judges Titone, Bellacosa, Smith, Levine, Ciparick and Wesley concur.

Order reversed, etc. 
      
       The Appellate Division also deemed defendant’s claim as to the exclusion of his children, in particular, unpreserved for appellate review. After defendant objected to the People’s application to close the courtroom, however, the trial court expressly considered allowing the children to remain present and specifically rejected that possibility. The court was thus unquestionably apprised of defendant’s wish to have his children attend the proceedings.
     