228 F. Supp. 500 | S.D.N.Y. | 1964
The petitioner seeks a writ of habeas corpus and the vacatur of a New York State judgment of conviction on the ground that his Federally protected right to a fair trial was violated. The basis of attack is that exhibits in evidence which were requested by the jury during its deliberation were submitted in the defendant’s absence and without his knowledge. His counsel was present and consented that they be sent to the jury. No appeal was taken from the judgment of conviction. Petitioner, however, several years after his conviction, presented his present claim to the New York State courts where, following a hearing, it was rejected.
The petitioner’s claim is without substance. The submission of exhibits, admitted in evidence, to a jury
“It bears, or may fairly be assumed to bear, a relation, reasonably substantial, to his opportunity to defend. Nowhere in the decisions of this court is there a dictum, and still less a ruling, that the Fourteenth Amendment assures the privilege of presence when presence would be useless, or the benefit but a shadow.”3
If, as our Court of Appeals has held, the reading of testimony of witnesses to a jury in the absence of a defendant does not impinge upon his right to a fair trial,
At the time of the trial New York State law provided that the Court could permit the jury upon retiring to take any paper or article which had been received in evidence, but only upon the consent of the defendant and the prosecution.
The petition is denied.
. People ex rel. Spinney v. Fay, 19 App.Div.2d 592, 240 N.Y.S.24 947 (2d Dep’t), leave to appeal denied, 13 N.Y.2d 596, 243 N.Y.S.2d 26 (1963).
. 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934).
. Id., at 106-107, 54 S.Ct. at 332, 78 L.Ed. 674.
. United States ex rel. Shapiro v. Jackson, 263 P.2d 282 (2d Cir. 1959).
. N.Y.Code of Crim.Proc. § 425.
. United States ex rel. Birch v. Fay, 190 F.Supp. 105 (S.D.N.Y.1961).