
    The People of the State of New York ex rel. Gustave Shapiro, Appellant, v. J. Edwin La Vallee, as Warden of Clinton Prison, Respondent.
   Appeal from an order of the Supreme Court, Clinton County, dismissing relator’s writ of habeas corpus following a hearing. Relator contends that during the trial at which he was convicted in 1940 for the crime of robbery, first degree, he was not present in the courtroom when the jury returned to the courtroom to have certain portions of the testimony in the trial read to them. The presumption of regularity present in such proceedings placed the burden on relator to overcome the presumption |and to prove he was, in fact, not present (see People ex rel. Bartlam v. Murphy, 9 N Y 2d 550). We agree with the court below that here the stenographic minutes of the trial neither refute rior support relator’s contention. Thus any determination as to the granting of the petition rests on evaluating the testimony of the witnesses at the hearing. This evaluation, of course, is primarily within the province of the court before whom the witnesses gave their testimony. On the present record we see no reason to disturb the determination of the court below. Order affirmed, without costs. Gibson, J. P., Herliky, Reynolds and Taylor, JJ., concur.  