The trial court's exclusion of defendant's children, ages eight and nine, from the courtroom violated defendant's right to a public trial, there being no support in the record for the contention that these children were being disruptive (see, People v. James, 229 A.D.2d 315, 316, lv denied 88 N.Y.2d 1021, citing People v. Gutierez, 86 N.Y.2d 817;see also, People v. Gomez, 256 A.D.2d 589, lv denied 93 N.Y.2d 924;People v. Miller, 224 A.D.2d 639, lv denied 88 N.Y.2d 851). Defense counsel's objection at trial to the exclusion of these non-disruptive children from the courtroom, although without specific reference to the right to a public trial, was sufficient to preserve the issue for appellate review (see, People v. Nieves, 90 N.Y.2d 426, 431 n.*; People v. Spence, 239 A.D.2d 218, 219). While the trial court's exclusion of defendant's younger niece and nephew may have been justified, the foregoing makes it unnecessary for us to reach that issue, as well as defendant's claim that the prosecutor's summation deprived him of a fair trial.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.