People ex rel. Lupo v. Fay

Decision Date30 December 1963
Citation246 N.Y.S.2d 399,196 N.E.2d 56,13 N.Y.2d 253
Parties, 196 N.E.2d 56 The PEOPLE of the State of New York ex rel. William LUPO, Appellant, v. Edward M. FAY, as Warden of Green Haven Prison, Stormville, New York, Respondent.
CourtNew York Court of Appeals Court of Appeals

Maurice Edelbaum, New York City, for appellant.

Louis J. Lefkowitz, Atty. Gen. (Ronald J. Offenkrantz and Samuel A. Hirshowitz, New York City, of counsel), for respondent.

DESMOND, Chief Judge.

The question: Is relator entitled to habeas corpus relief because during his grand larceny trial in January, 1958 he was absent from the courtroom while there was being argued his counsel's motion for a mistrial on the ground that requiring further deliberation by the jury would amount to coercing a verdict? The motion was denied, defendant was convicted, the judgment of conviction was affirmed by the Appellate Division (13 A.D.2d 684, 215 N.Y.S.2d 727) and leave to appeal to this court was denied by a Judge of this court. Defendant is now serving the prison sentence imposed because of that conviction.

After a hearing in Supreme Court, Dutchess County, the writ was dismissed on a holding that relator's 'presence at the time indicated had no relation reasonably substantial to the fullness of his opportunity to defend against the charge made against him.' While the Supreme Court Justice in denying habeas corpus relief made no express finding that defendant was absent from the courtroom at the indicated point in his criminal trial, the court apparently took that to be the fact, particularly since the trial minutes did not show defendant's presence there at that time. On this appeal, therefore, we treat the case as if it had been formally held that relator's allegations as to absence are true.

Our starting point is the requirement of section 356 of the Code of Criminal Procedure that on a trial for felony 'the defendant must be personally present'. The statute's purposes are two: to prevent the ancient evil of secret trials (People v. Thorn, 156 N.Y. 286, 50 N.E 947, 42 L.R.A. 368) and to guarantee the defendant's right to be present at all important stages of his trial. Denial of that right voids the conviction and can be redressed in habeas corpus proceedings after conviction (People ex rel. Bartlam v. Murphy, first appeal, 9 N.Y.2d 550, 215 N.Y.S.2d 753, 175 N.E.2d 336). But the right to be present throughout the trial, being derived from the right to a jury trial and the right to defend and to be heard, must be kept within the limits of common sense and reason (People v. Bragle, 88 N.Y. 585). It is not literally true that after indictment nothing may validly be done in the defendant's absence, otherwise he would have to be in court during the argument of any motion of whatever kind and, indeed, during the presentation of any appeal. There is no such requirement in decisions or by custom or tradition (see People v. Vail, 6 Abb.N.C. 206, People v. Clark, 1 Parker Cr.Rep. 360). Our dismissal, for lack of a substantial constitutional question, of the appeal in People ex rel. McCormack v. Fay, 12 N.Y.2d 1109, amounted to a holding that defendant's nonpresence during the presentation by his counsel of arguments against taking defendant's wife's testimony did not deprive him of any right. After we had dismissed that appeal McCormack took habeas corpus proceedings in the United States District Court for the Southern District of New York on the same ground, but was again defeated (United States ex rel. McCormack v. Fay, 63 Civ. 1050, not otherwise reported).

While not directly controlling on us, Snyder v. Com. of Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674, defendant absent during jury's 'view' of the locus is a sound, fair guide for decision in such cases. Due process, held the Supreme Court in Snyder, mandates the presence of a defendant at his felony trial to the extent only that his presence is necessary for a fair and just hearing of his cause and he must be deemed to have the absolute right to hear everything the jury hears (see United States v. Johnson, 3 Cir., 129 F.2d 954, affd. 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704) so that his may be the opportunity to confront his accusers and advise with his counsel. Justice Cardozo wrote that the inquiry should be: whether the defendant's presence at the particular trial stage had 'a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge' (Snyder v. Com. of Massachusetts, 291 U.S. 97, 105-106, 54 S.Ct. 330, 332, 78 L.Ed. 674, supra). Application of that test here defeats the writ. It seems that, after having deliberated for some hours, the jurors in...

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64 cases
  • Brown v. State, s. 302
    • United States
    • Maryland Court of Appeals
    • 26 Septiembre 1974
    ...proceedings which do not affect the question of his guilt or innocence.' 437 S.W.2d at 515. In People ex rel. Lupo v. Fay, 13 N.Y.2d 253, 246 N.Y.S.2d 399, 196 N.E.2d 56 (1963), cert. denied, 376 U.S. 958, 84 S.Ct. 979, 11 L.Ed.2d 976 (1964), the relator sought habeas corpus relief alleging......
  • People v. Chambliss
    • United States
    • New York County Court
    • 18 Agosto 1980
    ...947) and to guarantee the defendant's right to be present at all important stages of his trial" (People ex rel. Lupo v. Fay, 13 N.Y.2d 253, 256, 246 N.Y.S.2d 399, 400, 196 N.E.2d 56, 58, cert. den. 376 U.S. 958, 84 S.Ct. 979, 11 L.Ed.2d 976). As "the statute is designed for the protection o......
  • Hughes v. State, 122
    • United States
    • Maryland Court of Appeals
    • 12 Agosto 1980
    ...the benefit but a shadow." 291 U.S. at 105-07, 54 S.Ct. at 332. In Brown, we quoted with approval from People ex rel. Lupo v. Fay, 13 N.Y.2d 253, 196 N.E.2d 56, 246 N.Y.S.2d 399 (1963), cert. denied, 376 U.S. 958 (1964), in which the New York Court of Appeals said (13 N.Y.2d at 256-57, 196 ......
  • People v. Williams
    • United States
    • New York Supreme Court — Appellate Division
    • 5 Mayo 1994
    ...fair guide for decision' " (People v. Morales, supra, at 456, 591 N.Y.S.2d 825, 606 N.E.2d 953, quoting People ex rel. Lupo v. Fay, 13 N.Y.2d 253, 256, 246 N.Y.S.2d 399, 196 N.E.2d 56, cert. denied 376 U.S. 958, 84 S.Ct. 979, 11 L.Ed.2d 976). Thus, a defendant has the right to attend ancill......
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