Opinion
February 10, 1999
Appeal from Judgment of Supreme Court, Erie County, Cosgrove, J. — Murder, 2nd Degree.
PRESENT: HAYES, J. P., WISNER, PIGOTT, JR., CALLAHAN AND BALIO, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: We agree with defendant that reversal is required because the Trial Judge was not present in the courtroom during a portion of the jury selection ( see, People v. Toliver, 89 N.Y.2d 843). "[T]he supervision of a Judge is an important and nonwaivable element of the right to a jury trial" ( People v. Thompson, 90 N.Y.2d 615, 621). Where, as here, "a Judge's absence from trial proceedings prevents performance of an essential, nondelegable judicial function reversal is required" ( People v. Monroe, 90 N.Y.2d 982, 984), even in the absence of an objection ( see, People v. Perkins, 229 A.D.2d 981, lv denied 88 N.Y.2d 1023).
The contention of defendant that the evidence seized from his house should have been suppressed is meritless. We agree with the determination of Supreme Court that the warrantless police entry into the house was justified under the emergency doctrine ( see, People v. Mitchell, 39 N.Y.2d 173, 177-178, cert denied 426 U.S. 953).
In view of our decision, we do not reach the other issues raised by defendant.