
    The People of the State of New York, Respondent, v George Sloan, Appellant. The People of the State of New York, Respondent, v Terrance McMahon, Appellant.
    Argued February 13, 1992;
    decided April 7, 1992
    
      POINTS OF COUNSEL
    
      Lawrence A. Vogelman, Barry C. Scheck and Ellen Yaroshefsky for appellant in the first above-entitled action. I.
    Because the station house showup, made when appellant and his two codefendants were handcuffed sitting adjacent to rifles and handguns allegedly used in the robbery in a room full of uniformed police officers, was so suggestive, the trial court erred in allowing its admission as well as the subsequent in-court identifications. (People v Riley, 70 NY2d 523.) II. The trial court erred in precluding appellant from hearing and participating in the voir dire in violation of his fundamental right to participate in his own defense under the Fifth and Sixth Amendments and CPL 260.20. (People v Mullen, 44 NY2d 1; People v Velasco, 77 NY2d 469; United States v Crutcher, 405 F2d 239; Kentucky v Stincer, 482 US 730; People v Mehmedi, 69 NY2d 759, 985.) III. Appellant’s rights to an impartial jury and a fair trial were violated when the trial court arranged a transportation scheme which placed an alternate juror in the presence of a deliberating jury. (People ex rel. Nunns v County Ct., 188 App Div 424; People v Bouton, 50 NY2d 130; People v Cocco, 305 NY 282; People v King, 13 AD2d 264; People v Brizzolara, 90 AD2d 926; People v Eatmon, 136 AD2d 909; People v Santana, 163 AD2d 495, 76 NY2d 944; People v Rodriguez, 71 NY2d 214; People v Brown, 48 NY2d 388; People v Ahmed, 66 NY2d 307, 67 NY2d 647.) IV. The trial court’s jury instructions violated appellant’s rights under the United States and New York State Constitutions by allowing the jury to draw adverse inferences from appellant not taking the stand. (People v Britt, 43 NY2d 111; People v Forte, 277 NY 440; People v Fitzgerald, 156 NY 253; People v Reid, 135 AD2d 753; People v Diggs, 151 AD2d 359; People v Hayes, 140 NY 484; People v Lara, 148 AD2d 340, 75 NY2d 836; People v Buckley, 75 NY2d 843.)
    
      Steven B. Rosenfeld and Leslie U Cornfeld for appellant in the second above-entitled action. I.
    Exclusion of appellant from the side-bar voir dire constituted reversible error. (People v Ciaccio, 47 NY2d 431; People v Mullen, 44 NY2d 1; Maurer v People, 43 NY 1; People v Mehmedi, 69 NY2d 759; People v Jones, 159 AD2d 644; Snyder v Massachusetts, 291 US 97; People v Cain, 76 NY2d 119; Lewis v United States, 146 US 370.) II. A new trial is required because a discharged alternate juror was permitted to have close contact with the regular jurors during deliberations. (People v Eatmon, 136 AD2d 909; People v Ahmed, 66 NY2d 307; People v Bouton, 50 NY2d 130; People v Santana, 163 AD2d 495; People v King, 13 AD2d 264; People v Brizzolara, 90 AD2d 926; People v Cocco, 305 NY 282; People v Letizia, 155 AD2d 952.) III. Improper and unduly suggestive precinct showup identifications and tainted in-court identifications should not have been admitted into evidence. (People v Riley, 70 NY2d 523; People v Soto, 87 AD2d 618; People v Price, 111 AD2d 568; People v Malcolm, 139 Misc 2d 140; People v Ford, 100 AD2d 941; People v Hubener, 133 AD2d 233; People v Gildersleeve, 143 AD2d 361; People v Guillermo, 137 AD2d 832; People v Farraro, 144 AD2d 976.)
    
      Robert M. Morgenthau, District Attorney (Alan Gadlin and Norman Barclay of counsel), for respondent in the first and second above-entitled actions. I.
    Roland, Blohm and Northe’s in-court identifications and Roland’s identification of defendants at the station house were admissible, and rendered the introduction of any other identification no more than harmless error. (People v Riley, 70 NY2d 523; People v Logan, 25 NY2d 184, 396 US 1020; People v Gonzalez, 61 AD2d 666, 46 NY2d 1011; People v Duuvon, 77 NY2d 541; People v Burr, 70 NY2d 354, 485 US 989; People v McRay, 51 NY2d 594; People v Chipp, 75 NY2d 327; People v McPherson, 56 NY2d 696; People v Dickerson, 50 NY2d 937.) II. The trial court properly exercised its discretion in prescreening the prospective jurors at the side bar. (People v Thomas, 50 NY2d 467; People v Patterson, 39 NY2d 288, 432 US 197; People v Coons, 75 NY2d 796; People v Mehmedi, 69 NY2d 759; People v Harris, 76 NY2d 810; People v Bailey, 146 AD2d 788; People v Corley, 67 NY2d 105; People v Brantley, 168 AD2d 949; People v Howard, 167 AD2d 922; People v Blake, 158 AD2d 979.) III. As defendants recognized below, the trial court kept a discharged alternate juror separate from the deliberating jurors after deliberations had begun. (People v Thomas, 50 NY2d 467; People v Argibay, 45 NY2d 45, cert denied sub nom. HahnDiGuiseppe v New York, 439 US 930; People v Caceras, 154 AD2d 310; People v Morman, 137 AD2d 838; People v Calvin of Oakknoll, 110 AD2d 1044; People v Bonaparte, 78 NY2d 26; People v Santana, 163 AD2d 495; People v Webb, 78 NY2d 335; United States v Gagnon, 470 US 522.) IV. Defendants’ present complaint that the court instructed the jury improperly on their failure to testify is unpreserved and meritless. (People v Autry, 75 NY2d 836; People v Buckley, 75 NY2d 843; People v Ford, 66 NY2d 428; People v Teeter, 47 NY2d 1002; People v Jackson, 76 NY2d 908; People v Nuccie, 57 NY2d 818; People v Comer, 73 NY2d 955; People v Santiago, 52 NY2d 865; People v McLucas, 15 NY2d 167; People v Fitzgerald, 156 NY 253.) V. Defendants have no right to complain that Justice Crane granted their own request to excuse a juror. (People v Hopkins, 76 NY2d 872; People v Parker, 168 AD2d 917; People v Ford, 66 NY2d 428; People v Ferguson, 67 NY2d 383; People v Mullen, 44 NY2d 1; People v Velasco, 77 NY2d 469; People v Franklin, 166 AD2d 162; People v Caceras, 154 AD2d 310; People v Clark, 132 AD2d 704; People v White, 53 NY2d 721.) VI. Defendants’ belated claim that they are entitled to a new trial because the Trial Judge improperly delegated his responsibilities to a court officer and the Administrative Judge is meritless. (People v Harris, 76 NY2d 810; People v Ciaccio, 47 NY2d 431; People v Torres, 72 NY2d 1007; People v Ahmed, 66 NY2d 307; People v Bowles, 168 AD2d 562; People v Morman, 137 AD2d 838; People v Phelps, 74 NY2d 919; People v Kinchen, 60 NY2d 772; People v Ford, 78 NY2d 878.) VII. As defendants apparently recognized below, none of the jurors were sleeping during the trial, and the court took appropriate measures to ensure the jury’s attentiveness. (People v Brown, 160 AD2d 172; People v Burwell, 159 AD2d 407; People v Caceras, 154 AD2d 310; People v Lombardo, 61 NY2d 97; People v Argibay, 45 NY2d 45; People v Ferguson, 165 AD2d 789; People v Poole, 154 AD2d 560; People v Santiago, 52 NY2d 865; People v Russell, 112 AD2d 451.)
   OPINION OF THE COURT

Hancock, Jr., J.

In People v Velasco (77 NY2d 469), we held that defendants do not have the right to be personally present during informal questioning of prospective jurors that relates only to grounds for juror disqualification by the court, such as physical impairment, family obligations and work commitments. The issue presented here is whether a defendant has a right to hear and be present during conference questioning concerning issues touching upon the merits, such as in this case, the jurors’ knowledge of and reaction to pretrial publicity concerning the specific crime on trial and their attitude toward the prosecution’s key witness, a widely known television newscaster. For the reasons that follow, we hold that questioning the prospective jurors on such matters without the presence of defendants was error. There should, therefore, be a reversal and a new trial.

I.

On May 11, 1983, defendants McMahon and Sloan, with the aid of two others, allegedly robbed the Racing Club restaurant on the Upper East Side of Manhattan. John Roland, a local television newscaster, attempted to disarm Sloan during the robbery. A struggle ensued during which shots were fired from Sloan’s handgun; Sloan and Roland grappled until McMahon subdued Roland by hitting him several times on the head with a pistol. While the robbery was underway, a waiter escaped from the restaurant and fled to a nearby police station. Defendants were apprehended one-half block from the scene after the waiter returned with the police and pointed out defendants as they fled the restaurant and entered a getaway car. Roland and two other witnesses later identified defendants in showup identifications held at the station house.

At the subsequent trial, prior to commencement of the formal voir dire by counsel, the Judge conducted a side-bar voir dire of prospective jurors regarding the impact of pretrial publicity and the widely reported involvement of Roland in the crime. After swearing in 90 prospective jurors, the Judge questioned them individually as to their exposure to pretrial publicity, their familiarity with Roland and the weight that they would give his testimony, and their knowledge of police and arrest procedures and of the crime scene. Jurors were asked such questions as whether they could weigh a news reporter’s testimony fairly; whether they believed that a newscaster has a better ability to observe and recall events than other witnesses; and whether their own knowledge of Roland as a newscaster or their exposure to pretrial publicity would affect their ability to be impartial. Many prospective jurors stated that they knew Roland as a television personality and that they had heard that he had been "pistol-whipped” during the robbery, had been hailed as a "hero”, and had received an award for crime prevention because of his actions. The questioning, conducted at the bench and out of hearing of defendants, continued until 18 venire members were chosen for formal voir dire.

Defendants were subsequently convicted after a jury verdict of robbery and weapons possession charges. In separate unanimous decisions, the Appellate Division affirmed the convictions (People v McMahon, 167 AD2d 137; People v Sloan, 169 AD2d 513). We now reverse.

II.

New York has long held that defendants have a fundamental right to be present with counsel at all material stages of a trial (see, CPL 260.20; People v Turaine, 78 NY2d 871; People v Mehmedi, 69 NY2d 759; People v Ciaccio, 47 NY2d 431; People v Mullen, 44 NY2d 1; Maurer v People, 43 NY 1; NY Const, art I, § 6; Preiser, Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 260.20, 1992 Supp Pamph, at 238). In People v Velasco (77 NY2d 469, supra), we summarized the law, stating:

"In People v Mullen (44 NY2d 1), we delineated the scope of a defendant’s statutory and constitutional rights to be present during court proceedings. We stated that under CPL 260.20, a defendant’s right to be present during the trial of an indictment included presence during the impaneling of the jury, the introduction of evidence, the summations of counsel, and the court’s charge to the jury (see, People v Mullen, 44 NY2d, at 4; Maurer v People, 43 NY 1, 3). We further noted that '[a]part from our statutory provision, due process requires the presence of a defendant at his trial "to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” (Snyder v Massachusetts, 291 US 97, 108.) His presence is required only where his absence would have a substantial effect on his ability to defend. (Snyder v Massachusetts, 291 US, at pp 105-106, supra * * *.)’ (44 NY2d, at 4-5.)” ad., at 472.)

In Velasco, we concluded that a defendant’s presence was not required when the court posed questions relating only to the qualifications of jurors in the general sense — questions concerning such matters as physical impairments, family obligations, and work commitments. We pointed out that the decisions of whether to excuse jurors on the grounds explored by such pre-voir dire screening were matters solely for the court, in which neither the defendant nor his counsel had a role (id., at 473). Thus, we held that a defendant’s presence or absence at such questioning could have had no effect on the ultimate fairness of the trial proceeding (id., at 473). We concluded that "[ujnder the circumstances, defendant’s presence at the bench conference would have been ’useless, or the benefit but a shadow.’ (Snyder v Massachusetts, 291 US, at 106-107.)” (Id., at 473.) Defendant, therefore, had no right to be present at such side-bar voir dire questioning.

Unlike Velasco, however, defendants’ presence here could have had a substantial effect on their ability to defend against the charges. The questioning went well beyond the matters pertaining to the jurors’ general qualifications covered in Velasco and delved into attitudes and feelings concerning some of the events and witnesses involved in the very case to be heard. The effect on the jurors of the pretrial publicity, their attitudes toward and possible predisposition to believe Roland, a key prosecution witness, and their ability to weigh the evidence objectively were subjects properly addressed in a formal voir dire.

Defendants’ presence at the questioning on such matters and the resultant opportunity for them to assess the jurors’ facial expressions, demeanor and other subliminal responses as well as the manner and tone of their verbal replies so as to detect any indication of bias or hostility, could have been critical in making proper determinations in the important and sensitive matters relating to challenges for cause and peremptories (see, Snyder v Massachusetts, supra, at 105; People v Ciaccio, 47 NY2d 431, 436, supra; People v Ganett, 68 AD2d 81, 87, affd 51 NY2d 991). We cannot conclude that defendants’ presence at the side-bar questioning would have been of no benefit or that their absence during such questioning would not have had a substantial effect on their ability to defend (People v Velasco, supra, at 473). Their exclusion from the questioning was error.

We have reviewed defendants’ other contentions and find them to be without merit.

Accordingly, in each case the order of the Appellate Division should be reversed and a new trial ordered.

Chief Judge Wachtler and Judges Simons, Kaye, Titone and Bellacosa concur.

In each case: Order reversed, etc.  