People v. Mullen

• Decision Date: 14 February 1978
• Citation: 44 N.Y.2d 1,374 N.E.2d 369,403 N.Y.S.2d 470
• Parties: , 374 N.E.2d 369 The PEOPLE of the State of New York, Respondent, v. Thomas F. MULLEN, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 470

403 N.Y.S.2d 470

44 N.Y.2d 1, 374 N.E.2d 369

The PEOPLE of the State of New York, Respondent, v. Thomas F. MULLEN, Appellant.

Court of Appeals of New York.

Feb. 14, 1978.

Thomas J. Neidl and J. Raymond Fisher, Albany, for appellant.

Sol Greenberg, Dist. Atty. (Melissa L. Campbell, Troy, of counsel), for respondent.

OPINION OF THE COURT

JASEN, Judge.

The question presented on this appeal is whether the in-chambers questioning of a seated juror for possible disqualification to serve, conducted by the Trial Judge in the presence of the prosecutor and defense counsel but in the absence of the defendant, constitutes a violation of CPL 260.20 or a denial of due process.

Defendant was indicted by the Albany County Grand Jury and accused in four counts with criminal possession of dangerous drugs in the third degree (Penal Law, § 220.20, subd. (b), par. (ii)); criminal use of drug paraphernalia in the second degree (Penal Law, § 220.50, subd. 2); criminal possession of a hypodermic instrument (Penal Law, § 220.45); and criminal possession of dangerous drugs in the sixth degree (Penal Law, § 220.05).

During the voir dire and selection of the jury, and after eight jurors had been selected and sworn, the first juror selected voluntarily stated in the presence of the panel that he thought the defendant looked familiar to him and that he remembered him from another case. At this point, the prosecutor asked the juror whether he remembered the defendant from another case on which he sat as a juror. The juror responded: "No, I didn't sit on it. I was working in a place that was broken into." The court then reminded the prosecutor that the juror had already been sworn and directed resumption of the selection of the jury.

After the entire jury had been impaneled and sworn, the court recessed, at which point the court called the first juror, the prosecutor and defense counsel to the bench. Immediately after this off-the-record discussion, the court conducted a hearing in chambers to consider whether the juror was qualified to remain a member of the jury. Although the prosecutor and defense counsel were present at the hearing, the defendant was not. In response to the court's inquiry as to whether the juror's knowledge of defendant would influence his decision in the case, the juror informed the court that it would not affect his verdict in any way that he just wanted to be fair. Defense counsel chose not to question the juror.

At the conclusion of the hearing, the Trial Justice stated that he did not believe the situation required statutory disqualification. In response to the Trial Justice's inquiry as to counsels' opinion on this question, both the prosecutor and defense counsel stated that they agreed with the court's conclusion. At no time did either defendant or his counsel seek to challenge the juror.

Following defendant's trial, the jury returned a verdict finding defendant guilty of criminal possession of dangerous drugs in the third degree and criminally using drug paraphernalia. The Appellate Division unanimously affirmed the judgment of conviction.

CPL 260.20 provides that "(a) defendant must be personally present during the trial of an indictment". Of critical importance to the interpretation of this provision is the meaning of the term "trial". Certainly such important proceedings as the impaneling of the jury, the introduction of evidence, the summations of counsel, and the court's charge to the jury must be deemed a part of the trial. (Maurer v. People, 43 N.Y. 1, 3.) Similarly, any further instructions given to the jury after they have retired to deliberate constitute the court's charge and are, therefore, viewed as a part of the trial. (People ex rel. Bartlam v. Murphy, 9 N.Y.2d 550, 553, 215 N.Y.S.2d 753, 755, 175 N.E.2d 336, 337.) All of these proceedings are deemed part of the trial because the presence of the defendant is considered "essential to the attainment of justice and the protection of the innocent." (Maurer v. People, 43 N.Y., at p. 3, supra.)

Apart from our statutory provision, due process requir the presence of a defendant at his trial "to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." (Synder v. Massachusetts, 291 U.S. 97, 108, 54 S.Ct. 330, 333, 78 L.Ed. 674.) His presence is required only where his absence would have a substantial effect on his ability to defend. (Snyder v. Massachusetts, 291 U.S., at pp. 105-106,54 S.Ct. 330, supra; People ex rel. Lupo v. Fay, 13 N.Y.2d 253, 256-257, 246 N.Y.S.2d 399, 400-401, 196 N.E.2d 56, 58 cert. den., 376 U.S. 958, 84 S.Ct. 979, 11 L.Ed.2d 976, see, generally, 4 Zett, New York Criminal Practice, § 29.2, subd. (2); Impanelling Jury Accused's Absence, Ann., 26 A.L.R.2d 762.)

Thus, whether the mandate requiring the presence of a defendant at the trial of his indictment stems from due process or statute, literal application of its directive is not demanded. Common sense dictates that substantial performance of its terms is sufficient. (People v. Bragle, 88 N.Y. 585, 590; People ex rel. Lupo v. Fay, 13 N.Y.2d at p. 256, 246 N.Y.S.2d 399, 400, 196 N.E.2d at p. 58, supra.)

Applying this guide to our statutory provision, we held in People ex rel. Lupo v. Fay (supra) that a defendant's absence from the courtroom during his c...