
    The People of the State of New York, Respondent, v. Paul La Barbera, Appellant.
    Fourth Department,
    December 23, 1936.
    
      Warner S. Rexford, for the appellant.
    
      David L. Brunstrom, for the respondent.
   Per Curiam.

After the charge and the jury’s retirement for deliberation, the jury returned and asked that the testimony of a witness be read. The defendant was not then present although both the court and the district attorney thought that he was present. The entire evidence of the witness was then read by the court and a juror asked a question in respect thereto and received an answer from the court. The absence of the defendant was then noticed. The defendant was brought into court and in his presence his counsel stated that he waived any error which might have occurred by proceeding with the trial during the absence of the defendant and expressly waived the re-reading of the testimony. We are constrained to hold, under the authority of Maurer v. People (43 N. Y. 1), that the error occurring by proceeding with the trial in the absence of the defendant (Code Crim. Proc. § 356) is one which cannot be waived even by the defendant himself.

All concur. Present — Sears, P. J., Taylor, Thompson, Crosby and Lewis, JJ.

Judgment of conviction reversed on the law and a new trial granted. 
      
       On January 13, 1937, a motion to amend the order of reversal was denied as unnecessary under section 543 of the Code of Criminal Procedure.— [By direction . of Court.
     