Opinion
Argued October 8, 1955
Decided November 23, 1955
Appeal from the Supreme Court, Appellate Division, Fourth Department, OTTAWAY, J.
John W. Condon, Jr., for appellant. John F. Dwyer, District Attorney ( Frederick M. Marshall of counsel), for respondent.
The defendant-appellant was convicted of second degree robbery and sentenced to seven and one-half to thirty years as a second felony offender.
The appellant has raised numerous grounds of error, only two of which merit discussion.
The appellant asserts that the trial court erred in refusing the defendant's request for permission to remain outside of the courtroom while the People's witnesses testified as to their description of the person who perpetrated the crime for which the defendant was indicted.
Section 356 of the Code of Criminal Procedure requires that the defendant must be personally present at the trial. Although he may waive this right to be present in court ( People v. La Barbera, 274 N.Y. 339), nevertheless the People have the right to require his presence for the purpose of identification by its witnesses. A defendant must obtain the permission of the Trial Judge to be absent from a trial. ( Barnett v. Russell, 299 Ky. 242; State v. Johnson, 82 Kan. 450.) The orderly administration of a trial requires this. The Trial Judge "must have the power at all times to keep the prisoner within sight of the court, the jury, the counsel and the witnesses." ( People v. Gardner, 144 N.Y. 119, 128.) Therefore, the refusal of the trial court to grant the motion of the defendant to remain outside the courtroom was not an abuse of discretion, or a denial of a statutory or constitutional privilege.
Appellant's second point has merit. In the course of moving to dismiss the indictment on several grounds prior to sentencing, the defense counsel submitted three affidavits to the trial court, which stated, first, that every prospective juror was asked on the voir dire whether he had any connection with or was a member of a law enforcement agency; second, that one particular juror failed to reveal such a connection; third, that this juror was actually "a member of the Civil Defense Auxiliary Police, attached to the West Seneca Police" and fourth, that the defense would have excused this juror had this fact been known to it. Defense counsel requested further time to explore the matter, but this request was denied. The trial court thereupon imposed sentence. No answering affidavits were submitted by the prosecution until after the motion for a hearing was denied.
Counsel are entitled to truthful answers to the questions which they propound on the voir dire. Although false answers at such time about inconsequential matters do not necessarily disqualify a juror ( Sturrock v. State, 229 Ind. 161; Smith v. State, 105 Tex. Cr. 104), it is a matter which must be closely scrutinized to determine if any of defendant's rights have been impaired thereby. Defendants are entitled to a full and fair disclosure of facts. It is only when they are armed with knowledge of the facts that they can determine whether to accept or reject a juror. If the prosecution had submitted answering affidavits sufficient to challenge the movant's statements at the time the trial court disposed of the motion, the trial court might have been justified in denying a hearing on the issues raised thereby. ( People v. Rosen, 251 App. Div. 584, affd. 275 N.Y. 627.) Since on the motion it was uncontroverted that the juror did not reveal that he was a member of an auxiliary police force, we think further proof should be taken by affidavit or oral testimony in order that the trial court, before passing on the merits of the application for a new trial, and this court, shall be fully informed as to all the circumstances relating to the questioning on the voir dire as it pertained to the particular juror.
The final determination of this appeal will be withheld so that the defendant may promptly renew in the Supreme Court, Erie County, the motion for a new trial, upon affidavits and notice to the District Attorney, as limited by the Per Curiam opinion herein. This is in accord with our practice. ( People v. Durling, 303 N.Y. 382.)
CONWAY, Ch. J., DESMOND, FULD, FROESSEL, VAN VOORHIS and BURKE, JJ., concur; DYE, J., taking no part.
Final determination of appeal withheld, etc.