Opinion
August 4, 1994
Appeal from the Supreme Court, New York County (Martin H. Rettinger, J.).
CPL 260.20 requires, in part, that "[a] defendant must be personally present during the trial of an indictment". The Court of Appeals, in People v. Morales ( 80 N.Y.2d 450, 455-456), interpreted that phrase to mean that a defendant's presence is mandated at a core segment of the trial, such as jury impanelment, introduction of evidence, jury charge, or receiving and recording the verdict, but for ancillary proceedings, such as a Sandoval hearing or the voir dire of prospective jurors, whether defendant's presence is required depends on the effect it might have on his ability to defend.
The pretrial colloquy at issue here, where the Judge who was about to commence defendant's bench trial apprised defense counsel of defendant's rumored intention to snatch an officer's weapon and "take somebody out this afternoon", was an ancillary proceeding, but one which bore upon defendant's fundamental right to a fair trial. It was quite possible that this rumor might prejudice the court, given the crime with which defendant was charged and the potential threat the rumor posed to the Judge and courtroom personnel. Defendant's presence would have allowed him to explain or deny the rumor, and more importantly, to assess the Judge's "facial expressions, demeanor and other subliminal responses" in deciding whether he wanted to be tried by him (People v. Sloan, 79 N.Y.2d 386, 392). Accordingly, defendant should have been apprised of the situation before trial and allowed to reconsider his position.
Concur — Murphy, P.J., Wallach, Kupferman and Williams, JJ.