People v. Mehmedi

• Decision Date: 24 March 1986
• Citation: 118 A.D.2d 806,500 N.Y.S.2d 304
• Parties: The PEOPLE, etc., Respondent, v. Halim MEHMEDI, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 304

500 N.Y.S.2d 304

118 A.D.2d 806

The PEOPLE, etc., Respondent, v. Halim MEHMEDI, Appellant.

Supreme Court, Appellate Division Second Department.

March 24, 1986.

Anthony V. Lombardino, Kew Gardens, pro se.

John J. Santucci, Dist. Atty., Kew Gardens (Michael O'Brien, of counsel), for respondent.

Before LAZER, J.P., and THOMPSON, WEINSTEIN and EIBER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Chetta, J.), rendered June 15, 1984, convicting him of two counts of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Judgment reversed, on the law, and new trial ordered. The facts have been considered and determined to be established.

The defendant was indicted and tried on charges of weapons possession as a result of driving a car in which two loaded, unlicensed guns were found pursuant to a lawful stop and search by police officers. The search for the guns was predicated on a police officer's observation of bullets in the console compartment between the front seats which were exposed to his view when the defendant opened the console to look for the car's registration. The defendant denied that he opened the console and claimed that he had no knowledge that the guns were in the car, which belonged to his brother.

After deliberations had commenced, the court received the following inquiry from the jury: "when searching for papers who opened the console[?]" The parties were reconvened and the record reflects the presence of the defense counsel and the prosecutor but the absence of the defendant. The jury was not returned to the courtroom and the court consulted with counsel in framing the answer to the jury's question. The court stated that it would give this wirtten response: "The police officer said the defendant did. The defendant denies it". The defense counsel objected and requested that the court state instead that "defendant said he did not open the console . The defendant's attorney did not object to the defendant's absence from these proceedings.

CPL 310.30 provides, in relevant part:

"At any time during its deliberation, the jury may request the court for further instruction or information with respect to the law, with respect to the content or substance of any trial evidence, or with respect to any other matter pertinent to the jury's consideration of the case. Upon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper" (emphasis supplied).

The Court of Appeals has held that, in framing its response to a jury's question, the court's discretion:

"is circumscribed, as under the prior code provision [Code of Criminal Procedure § 427, the predecessor to CPL 310.30], by the requirement that the court respond meaningfully to the jury's request for further instruction or information * * * The factors to be evaluated are the form of the jury's question, which may have to be clarified before it can be answered, the particular issue of which inquiry is made, the supplemental instruction actually given and the presence or absence of prejudice to the defendant" (People v. Malloy, 55 N.Y.2d 296, 302, 449 N.Y.S.2d 168, 434 N.E.2d 237, cert. denied 459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 93).

Since the actual testimony on the issue of who opened the console consisted of two or three answers to questions, and the court's response contained that exact information, the response was certainly meaningful. Furthermore, the defense counsel never objected to the framing of a written response as opposed to an actual rereading of the testimony. Therefore, the defendant's claim that the actual testimony should have been read to the jury, raised for the first time on appeal, has not been preserved for appellate review (CPL 470.05[2]).

However, the absence of the defendant from the proceedings in which the question was received and the answer framed and delivered to the jury was a fatal error which cannot be deemed waived even in the absence of a contemporaneous objection (see, People v. Ciaccio, 47 N.Y.2d 431, 418 N.Y.S.2d 371, 391 N.E.2d 1347). The defendant had an absolute right to be present, with counsel, at all proceedings concerning the court's charge, admonishments, instructions to the jury and responses to jury questions during deliberations (see, People v. Ciaccio, supra, at pp. 436-437, 418 N.Y.S.2d 371, 391 N.E.2d 1347; People v. Saccomanno, 25 A.D.2d 528, 529, 267 N.Y.S.2d 641; Maurer v. People, 43 N.Y. 1, 5). As the Court of Appeals held in People v. Ciaccio, supra, 47 N.Y.2d at pp. 436-437, 418 N.Y.S.2d 371, 391 N.E.2d 1347:

"Where the court's instructions are supplemental, coming after the jury has already once retired, they may well be determinative of the outcome of the case, coming as they do in response to questions raised by the jurors themselves. As such, the presence of the defendant and his counsel is constitutionally required whenever supplemental instructions are given, and failure to notify them is a fundamental error (US Const, 6th Amdt; NY Const, art I, § 6)".

Accordingly, although the defendant's guilt was proven beyond a reasonable doubt, the judgment is hereby reversed and a new trial ordered.

LAZER, J.P., and THOMPSON and EIBER, JJ., concur.

WEINSTEIN, Justice, dissents and votes to affirm the judgment of conviction, with the following memorandum:

In my view the absence of the defendant from the proceedings whereby the jurors' inquiry was received and the court's answer framed and delivered does not, under these particular circumstances, warrant our reversal.

"Whether the error of the trial court in giving additional instructions to the jury in the absence of the accused is prejudicial in nature, and hence requires reversal of the conviction, may depend upon the circumstances of the case" (76 Am Jur 2d, Trial § 1048, p 45). Due process requires a defendant's presence at trial in situations where a fair and just hearing would be thwarted by his absence. "The privilege of presence must bear a reasonably substantial relation to a defendant's opportunity to defend and is not constitutionally assured where his presence 'would be useless, or the benefit but a shadow' " (People v. Wilson, 106 A.D.2d 146, 148, 484 N.Y.S.2d 733, quoting from Snyder v. Massachusetts, 291 U.S. 97, 106-107, 54 S.Ct. 330, 332, 78 L.Ed. 674).

The basic right of a person indicted for a felony to be personally present during his trial has been statutorily and judicially reinforced (CPL 260.20; Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674; People v. Trendell, 61 N.Y.2d 728, 472 N.Y.S.2d 616, 460 N.E.2d 1101). In the 1870 case of Maurer v. People, 43 N.Y. 1, 3-5, the Court of Appeals made the following pronouncement:

"The clause, 'during such trial', as used in the statute, ^* includes all proceedings had in impanneling the jury, the introduction of evidence, the summing up of counsel, and the charge of the court to the jury, receiving and recording the verdict.

In all these proceedings, the legislature has deemed the presence of the accused essential to the attainment of justice and the protection of the innocent. The charge of the court to the jury includes all instructions of the court to the jury upon points of law, and all comments upon the evidence. Those familiar with trials for crime must be aware that the presence of the accused is quite as necessary and important to him during the latter as the former * * * Any...