Opinion
August 1, 1961
Appeal by defendant from a judgment of conviction of the crime of arson in the second degree rendered in the County Court of Schuyler County on October 19, 1960. At the trial the People called as a witness one Greene, a chief special agent of the National Board of Fire Underwriters, who, at the invitation of the Sheriff of Schuyler County and the suggestion of its County Fire Co-ordinator, went to the site of the fire in an effort to determine its cause. His testimony described the physical facts which he found to be present at the scene which "indicated to [him] that some type of an accelerant had been poured in a trailer fashion around the base of all the walls, * * * resulting in the complete and total destruction of the wood in an area of approximately six or eight inches from where the base of the wall would be `which' would have to have been something that would absorb quickly into the wood, possibly gasoline, kerosene, something of that petroleum nature." He then was asked to give his opinion, based on his experience and observations, as to the nature of the fire. He answered: "I feel the fire was of an incendiary nature". On proper grounds, defendant's counsel objected to the reception of this opinion evidence and duly excepted to the court's ruling. The receipt of this evidence was error so serious in itself as to require the reversal of the judgment of conviction. ( People v. Grutz, 212 N.Y. 72, 82; People v. Brown, 110 App. Div. 490, affd. without opinion 188 N.Y. 554.) We would stop here if we did not deem it necessary to indicate our disapproval of the procedure adopted by the trial court in complying with a request made by the jury during the course of its deliberations. The jury sought to be advised concerning the testimony of a prosecution witness. When its message was conveyed to the Presiding Judge in his chambers, he instructed the Clerk of the court to procure the desired information from the court stenographer. Having heard read the pertinent testimony, the Clerk then imparted it, in paraphrase, to a court attendant who, in turn, relayed it to the jury. All this took place in the absence of counsel for defendant. This episode clearly violated defendant's constitutional and statutory rights. (N.Y. Const., art. I, § 6; U.S. Const., 14th Amdt., § 1; Code Crim. Pro., § 427.) Judgment reversed on the law and the facts and a new trial ordered. Bergan, P.J., Gibson, Reynolds and Taylor, JJ., concur.