
    The People of the State of New York, Respondent, v Julio Garcia, Also Known as Pedro Cotto and John Doe Pervugo, Appellant.
    Argued January 10, 1977;
    decided February 15, 1977
    
      Daniel J. Bernstein and William E. Hellerstein for appellant.
    
      Mario Merola, District Attorney (Bruce M. Tenenbaum of counsel), for respondent.
   Order affirmed on the opinion by Presiding Justice Harold A. Stevens at the Appellate Division (51 AD2d 329).

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke. Judge Fuchsberg dissents and votes to reverse in the following opinion.

Fuchsberg, J. (dissenting).

In my judgment, the defendant was deprived of his fundamental right to a fair trial, both because (1) his privilege against self incrimination (NY Const, art I, § 6; US Const, 14th Amdt) was violated in the manner so well stated by Mr. Justice Louis J. Capozzoli in his opinion for the two dissenters at the Appellate Division, and (2) because of the closing of the courtroom to the public during the testimony of Officer Ferrer solely on the per se ground that he was an undercover agent and without any demonstration of special circumstances such as, for instance, the "presence of other investigatory targets [which] posed a threat to the agent’s life” (People v Hinton, 31 NY2d 71, 75; US Const, 6th Amdt; see, also, People v Crimmins, 36 NY2d 230, 238). Reversal of the conviction and a new trial are therefore required.

Order affirmed, etc.  