People v. James , 645 N.Y.S.2d 300 ( 1996 )

Judgment, Supreme Court, Bronx County (John Stackhouse, J.), rendered November 14, 1994, convicting defendant, after jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him to a term of 7 to 21 years, unanimously reversed, on the law, and the matter remanded for a new trial.

The trial court erred in excluding defendant’s eight-year-old son and a friend from the courtroom during summations and the charge to the jury. The prosecutor had objected to the child’s presence on the ground that it was "a ploy to tug on the jurors’ sympathy”. The court responded: "Eight years old. I will not permit an eight year old to be here during my charge or the summations.” The error denied defendant his constitutional right to a public trial (People v Gutierez, 86 NY2d 817; People v Miller, 224 AD2d 638; People v Cole, 207 AD2d 273, lv denied 84 NY2d 867).

We note that, were we not reversing, we would find the sentence imposed to be excessive. Concur—Murphy, P. J., Rosenberger, Rubin and Williams, JJ.