People v. Blank , 4 A.D.2d 755 ( 1957 )

In a proceeding in the nature of a writ of error coram nobis, to set aside a judgment of the County Court, Kings County, rendered November 10, 1939, convicting appellant of abortion, the appeal is from an order of said court denying the application, after a hearing. Order affirmed. No opinion. Nolan, P. J., Beldock, Ughetta and Kleinfeld, JJ., concur; Murphy, J., dissents, and votes to reverse and grant the application, with the following memorandum: The appellant contends that the trial court gave supplementary instructions to the jury on two occasions while both he, as defendant, and his trial counsel were absent from the courtroom. That this was so is indicated beyond doubt by all the testimony before the court which heard the application to vacate the judgment. The distinguished trial counsel testified that he was not present when the supplemental instructions were given to the jury. Another attorney, who was admitted to practice in 1925, testified that as counsel for a codefendant he was present when the supplemental charges were given to the jury, but neither the trial counsel nor the appellant was present when such instructions were given. Another witness testified that she was in a restaurant with the appellant and his wife from about 4:15 o’clock in the afternoon to just before 7 o’clock in the evening, during the period when the court is alleged to have given its supplemental instructions to the jury. This testimony was corroborated by the appellant’s wife. Appellant’s testimony was to the same effect. There was no evidence offered by the People to offset the aforesaid testimony. It is a time-honored right of a defendant in a felony trial to be present during the giving of instructions to the jury. This right was violated at appellant’s trial. Maurer v. People (43 N. Y. 1) is still the law and is particularly applicable here (Code Crim. Pro., §§ 356, 427).