652 N.Y.S.2d 728 | NY | 1996
The People of the State of New York, Respondent,
v.
Michael Toliver, Appellant.
Court of Appeals of the State of New York.
Simpson Thacher & Bartlett, New York City (Lawrence M. Young of counsel), Whitney Tymas, Richard Greenberg and E. Joshua Rosenkranz for appellant.
Robert M. Morgenthau, District Attorney of New York County, New York City (Mark Dwyer of counsel), for respondent.
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur in memorandum.
*844MEMORANDUM.
The order of the Appellate Division should be reversed and a new trial ordered.
Defendant was arrested and charged with sodomy in the second degree (Penal Law § 130.45). The first trial on the indictment resulted in a hung jury. Upon retrial, the jury convicted defendant as charged. Thereafter, defendant was sentenced as a predicate felon to an indeterminate prison term of 2½ years to 5 years. Defendant served 3½ years of this term and is currently on parole.
On appeal, defendant argues that reversal of his conviction is required due to the Trial Judge's absence from the courtroom during the prosecutor's questioning of the prospective jurors.
The presence of and supervision by a Judge constitutes an integral component of the right to a jury trial (People v Ahmed, 66 N.Y.2d 307, 311-312). Since the selection of the jury is part of the criminal trial (see, People v Velasco, 77 N.Y.2d 469, 472; People v Mullen, 44 N.Y.2d 1, 4), a defendant has a fundamental right to have a Judge preside over and supervise the voir dire proceedings while prospective jurors are being questioned regarding their qualifications. A Judge who relinquishes control over the proceedings or delegates the duty to supervise deprives a defendant of the right to a trial by jury, requiring reversal (see, e.g., People v Torres, 72 N.Y.2d 1007, 1008-1009; People v Ahmed, 66 NY2d, at 311-312, supra; see also, People v Parisi, 276 N.Y. 97, 99).
*845Here, the Judge's absence from portions of the actual voir dire examination of jurors by counsel violated these fundamental precepts. In the end, it is the Judge who is the ultimate arbiter of a prospective juror's fitness to serve (see, CPL 270.20; see also, People v Payne, 88 N.Y.2d 172; People v Allen, 86 N.Y.2d 101).
Nor may the Judge's absence from the trial be excused on the ground that this record does not reflect any objectionable conduct or practice by counsel in the relevant time period when, in fact, the record reflects that the Judge absented himself while the prosecutor was questioning prospective jurors.
Order reversed, etc.