Order affirmed on the opinion by Presiding Justice HAROLD A. STEVENS at the Appellate Division ( 51 A.D.2d 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 N.Y.2d 71, 75; US Const, 6th Amdt; see, also, People v Crimmins, 36 N.Y.2d 230, 238). Reversal of the conviction and a new trial are therefore required.
Order affirmed, etc.