SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
July 14, 1969
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
JAMES ROBERT OUTCALT, APPELLANT
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered July 26, 1967, convicting him of feloniously selling a narcotic drug and unlawfully possessing a narcotic drug, upon a jury verdict, and imposing sentence.
Christ, Acting P. J., Benjamin, Martuscello and Kleinfeld, JJ., concur; Munder, J., dissents and votes to affirm the judgment.
Although the right to a public trial (Code Crim. Pro., § 8, subd. 1; Civil Rights Law, § 12; cf. U. S. Const., 6th Amdt.) is not absolute, being "subject to the inherent power of the court to preserve order and decorum in the courtroom, to protect the rights of parties and witnesses, and generally to further the administration of justice" (People v. Jelke, 308 N. Y. 56, 63; see, also, Judiciary Law, § 4), in our opinion defendant's right to a public trial was violated when the Trial Justice excluded from the courtroom "anybody * * * connected in any way with the defendant's case." Two of the persons so excluded were defendant's brothers who clearly indicated to the court that they were not going to be called to testify. On this record, it cannot be said that there was any reasonable basis for excluding them (cf. State v. Haskins, 38 N. J. Super. 250).
Judgment reversed, on the law, in the exercise of discretion and in the interests of justice, and new trial ordered. The findings of fact below are affirmed.
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