
    The People of the State of New York, Appellant, v Suraj Narayan, Respondent.
    Argued August 31, 1981;
    
    decided October 29, 1981
    
      POINTS OF COUNSEL
    
      John J. Santucci, District Attorney (Barry A. Schwartz and Joan L. Craig of counsel), for appellant.
    Defendant’s right to the assistance of counsel was not violated by the trial court’s unobjected to instructions that defendant not discuss his testimony during two brief and routine recesses, or by the trial court’s failure to expressly rescind those instructions at the close of the court day. (Geders v United States, 425 US 80; United States v Leighton, 386 F2d 822; United States v Venuto, 182 F2d 519; Estelle v Williams, 425 US 501; United States v Crutcher, 405 F2d 239, 394 US 908; Krull v United States, 240 F2d 122, 353 US 915; People v Cerami, 33 NY2d 243; People v Michael, 48 NY2d 1.)
    
      Anthony V. Lombardino for respondent.
    I. The evidence against respondent was insufficient as a matter of law, since it was just as consistent with his innocence and was predicated on mere surmise and conjecture. (People v Razezicz, 206 NY 249; People v Leyra, 1 NY2d 199; People v Brown, 24 NY2d 421; People v Corrado, 22 NY2d 308; Matter of Winship, 397 US 358.) II. Court prohibition of respondent’s access to counsel during trial and discrediting respondent for consultation with counsel worked to deprive respondent of his Sixth Amendment right to effective aid of counsel. (Powell v Alabama, 287 US 45; Gideon v Wainwright, 372 US 335; Moore v Michigan, 355 US 155; People v Blake, 35 NY2d 331; People v Hobson, 39 NY2d 479; People v Coleman, 43 NY2d 222; Matter of Lee v County Ct. of Erie County, 27 NY2d 432; People ex rel. Donohoe v Montanye, 35 NY2d 221; People v Loiacono, 40 AD2d 856.) III. Respondent’s Fourth Amendment rights were violated by the warrantless entry of a detective into his home, based upon the latter’s claimed suspicion, without factual support, that respondent had committed suicide. (People v Payton, 45 NY2d 300; Matter of B. T. Prods, v Barr, 44 NY2d 226; People v Baldon, 51 AD2d 880; People v Colder, 44 AD2d 683; People v Munoz, 40 AD2d 337; People v Brown, 24 NY2d 241; People v Corrado, 22 NY2d 308; Coolidge v New Hampshire, 403 US 443; Matter of Kwok T., 43 NY2d 213; Fahy v Connecticut, 375 US 85.) IV. Destruction of evidence, to wit, the alleged blood and brain stained jacket, before the defense had opportunity for its own expert examination as ordered by the court and displaying the tampered evidence before the jury deprived respondent of his constitutional right to a fair trial. (Moore v Illinois, 408 US 786; People v Simmons, 36 NY2d 126; People v Ambrose, 52 AD2d 850; People v Maynard, 80 Misc 2d 279; People v Boyer, 65 AD2d 840; United States v Bryant, 439 F2d 642; United States v Consolidated Laundries Corp., 291 F2d 563.) V. The use of evidence of prior assaultive conduct of respondent upon Sandra Zahler and his prior wife to prove his propensity to commit the crime charged, deprived him of a fair trial. (People v McKinney, 24 NY2d 180; People v Mullen, 41 NY2d 475; People v Molineux, 168 NY 264; People v Goldstein, 295 NY 61; People v Schwartzman, 24 NY2d 241; People v Allweiss, 61 AD2d 74; People v Sandoval, 34 NY2d 371; People v Fiore, 34 NY2d 81; People v Montanez, 41 NY2d 53.) VI. Cross-examination of respondent with material allegedly disclosed by him in the course of a court-ordered psychological examination was violative of the physician-patient privilege. (Matter of Lee v County Ct. of Erie County, 27 NY2d 432; People v Waterman, 9 NY2d 561.) VII. Evidence that the victim’s blood type was identical to what was found on respondent’s coat and that respondent’s was different, was prejudicial and deprived respondent of a fair trial. (People v Robinson, 27 NY2d 864; People v Macedonio, 42 NY2d 944.) VIII. Misleading instructions to the jury concerning the law of flight deprived respondent of a fair trial. (People v Limage, 57 AD2d 906; People v Yazum, 13 NY2d 302.) IX. Misconduct by the prosecutor by decimating respondent’s summation to damage its efficacy and by screaming throughout the trial, together with unfair limitation by the court of respondent’s summation, deprived respondent of a fair trial. (People v Cruz, 52 AD2d 1; People v Hendricks, 56 AD2d 893; People v Petrucelli, 44 AD2d 58; People v Alicea, 37 NY2d 601; People v Steinhardt, 9 NY2d 267; People v Marcelin, 23 AD2d 368; People v Sepulveda, 44 AD2d 846.)
   OPINION OF THE COURT

Jones, J.

The contention that the trial court interfered with defendant’s constitutional right to assistance of counsel was not preserved for appellate review inasmuch as no timely protest was registered. Because the Appellate Division erred as a matter of law in addressing the issue on the alternative predicates that the contention of error had been preserved or that, if it had not been preserved, preservation was not required, the case must be remitted to that court for reconsideration.

Defendant’s trial on an indictment charging him with murder in the second degree, committed by killing Sandra Zahler on December 25, 1974, began on May 21, 1976 and concluded with a jury verdict of guilty returned June 17, 1976. The events relevant to the Appellate Division’s reversal and determinative of our disposition of the appeal occurred on Monday and Tuesday, June 14 and June 15, 1976.

On the first of these dates defendant took the witness stand and commenced his direct testimony which continued through part of the morning until a recess was ordered by the court. After the jury had left the courtroom the Trial Judge instructed defendant’s counsel that he was not to talk to his client about the latter’s testimony and similarly instructed defendant that he was not to talk to his attorney about his testimony. The court inquired from defendant whether he understood the instruction, and defendant responded that he did. Counsel was silent, registering no protest to the court’s directions. When the recess was over, defendant resumed the stand and continued his direct testimony until a luncheon recess was called. After the jury had departed from the courtroom, the court again instructed defendant not to discuss his testimony, and again defense counsel said nothing. When the trial resumed after the interval for lunch, the afternoon was devoted to cross-examination of defendant by the prosecuting attorney which was still in progress when the court declared a recess at the end of the day. Nothing whatsoever was said at that time with reference to the previously imposed ban on communication between defendant and his counsel concerning his testimony, by way either of reaffirmation or of rescission.

On the following day, June 15, after a lengthy sidebar conference between the court and counsel concerning the propriety of a line of examination sought to be pursued by the Assistant District Attorney, as defendant was about to resume the stand for continuation of cross-examination, defense counsel stated that he would like to place something on the record and said that he would like to speak with his client. When the court pointed out that defendant was “on the stand” and that he would not permit the consultation “while he’s testifying”, defendant’s counsel then for the first time protested that his client’s right of access to his attorney was being interfered with.

Cross-examination__of defendant was then renewed and continued until a 15-minute recess was declared to permit the court to consider an evidentiary question that had arisen. A request by defendant’s counsel made at the beginning of the recess for permission to speak with his client during the recess initially was denied; however, the court subsequently reversed that ruling and defendant and counsel were thereupon permitted to confer before the recess ended as had been requested. After that consultation the trial continued to conclusion without further restriction on defendant’s access to his attorney.

Considering and rejecting as without merit other claims of error urged by defendant, the Appellate Division, by a divided court, reversed the judgment of conviction on the law because it concluded that defendant had been denied his constitutional right to the assistance of counsel by the order of the trial court which prevented “all meaningful communication between the defendant and his attorney from the morning of June 14, 1976 until some point during trial on the next day.” (76 AD2d, pp 607-608.) In approaching a review of that disposition our first inquiry must be whether the asserted error in the alleged interference with defendant’s right of access to counsel was a matter open to examination by the Appellate Division, other than by an exercise of its interest of justice jurisdiction, which its order makes clear was not the basis for its review and reversal in this case. The response to that inquiry depends on whether a question of law for appellate review with respect to the Trial Judge’s rulings was presented, which in turn depends on whether “a protest thereto was registered, by the party claiming error, at the time of such ruling * * * or at any subsequent time when the court had an opportunity of effectively changing the same” (CPL 470.05, subd 2), for “[t]o create and preserve a question of law amendable to appellate review, a defendant in a criminal case normally must raise that issue before the court of original jurisdiction” (People v Cona, 49 NY2d 26, 33).

The Justices who were in the majority at the Appellate Division were of the persuasion, however, that because of the magnitude of the right asserted to have been curtailed, no objection by defendant was necessary to preserve the error for appellate review. We reach a different conclusion. Without in any way depreciating the stature of the constitutionally protected right of a criminal defendant effectively to confer with counsel and not to be deprived of that right of consultation for any substantial period of time (Geders v United States, 425 US 80), we find no justification for departing from the requirement that trial court error (here interference with that right) must be brought to the court’s attention by protest timely made, at least where counsel acting on defendant’s behalf is present and available to register a protest and where the error if called to the court’s attetnion is readily susceptible to effective remedy. In such a setting the registering of an objection would afford the trial court opportunity promptly to rescind any directive violative of the defendant’s right of access to counsel or otherwise to cure the error. Conversely, requiring that the normal, statutorily prescribed protest be made imposes no weighty or unreasonable burden on the defendant whose counsel is at his, side.

The fact of counsel’s presence here at the time of the trespass on defendant’s right to his assistance distinguishes this case from People v Arthur (22 NY2d 325) and People v Felder (47 NY2d 287), on which the Appellate Division relied. It detracts not at all from the significance or worth ascribed to the right to assistance of counsel in each of those cases, as well as a legion of others in this and other jurisdictions of which Gideon v Wainwright (372 US 335) (also relied on by the Appellate Division) is the fountainhead, to take note that in each case cited it was the absence of counsel at the critical time that was determinative. Here an objection voiced by counsel on June 14, 1976, when the trial court first uttered its prohibition against consultation between attorney and client, might well have resulted in a change of the Trial Judge’s ruling and total avoidance of interference with defendant’s constitutional claim. For all that appeared, however, defense counsel found the directives given that day unobjectionable and not adverse to defendant’s interests. In that circumstance, in light of counsel’s acquiescence at a time when correction was possible, defendant could not, in disregard of the statutory requirement of timely protest, thereafter secure appellate review of what transpired when counsel stood mute.

Concluding then, as we do, that protest was required to preserve the issue for appellate review as a question of law, we must determine whether, as the Appellate Division appears to have concluded, counsel’s request to speak with his client before the resumption of his cross-examination on the morning of June 15, 1976, accompanied by an assertion of defendant’s right of access to counsel, served as a sufficient protest, first as to the court’s denial of the request made at that time, then to what had occurred on the previous day.

As to the denial of the request made on June 15 (then articulated by the court to be on the ground that the request was made in the course of defendant’s examination), we have no doubt that counsel entered a sufficient and timely protest and that, had the Appellate Division limited its consideration to that denial of consultation between attorney and client — which it did not — it would have been acting within the scope of its appellate authority to review errors of law, if any.

As to acceptance of the contention that counsel’s request and argumentation on June 15 was a sufficient protest against the prior day’s restrictions (concededly no protest was registered on June 14), we reach a different result. The statement on the following day of counsel’s desire for consultation was too late to have alerted the court to such a desire,' if one existed, on the prior day when counsel was silent in face of the ban on communication between him and his client concerning the latter’s testimony. The therapeutic purpose of the requirement that a protest be registered— to call the court’s attention to and permit it to correct what counsel believes is an erroneous ruling — was by then beyond fulfillment. The effect of the trial court’s explicit ban announced on June 14 had been exhausted by the morning of June 15 as to the period of defendant’s examination on the stand on the 14th and as to the overnight period between June 14 and June 15. Because no timely protest had been registered errors, if any, with respect to rulings of the trial court prior to Tuesday morning, June 15, were not available as predicates for the Appellate Division’s reversal on the law (although they could have been made the premise for a reversal by that court in the exercise of its interest of justice jurisdiction).

Inasmuch as the opinion of the majority at the Appellate Division makes it clear that its reversal on the law was based at least in part, if not principally, on the June 14 rulings, we have no choice but to reverse the order of the Appellate Division and remit the case to that court to permit it, if it deems it appropriate, to exercise its discretionary power to review alleged errors even in the absence of timely objection (People v Cona, 49 NY2d 26, 33, supra). Our review stops at that point and it would be inappropriate for us now to express any opinion as to defendant’s contentions of error with respect to the June 14 rulings of the trial court (People v Cona, supra, p 34).

For the reasons stated, the order of the Appellate Division should be reversed, defendant’s conviction reinstated and the case remitted to that court for consideration in accordance with this opinion.

Meyer, J.

(concurring). I concur in the result though not in the reasoning of the majority, for I disagree with the conception that had an objection been made on the morning of the 15th based on the absence of a right to confer during the overnight recess, the purpose of the objection would then have been beyond fulfillment. It would certainly have been possible, had objection on that basis been made, for a recess to have been taken to allow whatever time was necessary for conference before continuing cross-examination of defendant and in my view, had that been all that was involved in the Trial Judge’s initial ruling on June 15, it would have been an abuse of discretion, having foreclosed overnight conference, not to recess then and there (Geders v United States, 425 US 80, 87-91).

Review of the record discloses, however, that there was a good deal more involved and establishes that the June 15 objection was generated by an issue other than the absence of an overnight conference between defendant and his attorney. The other issue was presented by the last question addressed to defendant by the prosecutor on the afternoon of June 14. It was whether defendant had stated to someone in a bar that he had killed someone on Christmas Eve. Defendant’s attorney’s motion for mistrial was denied, but a sidebar conference revealed that the basis for the question was a tape-recorded call to the 911 police emergency operator, a transcription of which was proffered to the Judge by the prosecutor. At that point court recessed to permit the Trial Judge to look into the legal issue thus presented.

When trial resumed on the morning of the 15th and before defendant was recalled, a further sidebar conference was held during which the Trial Judge, stating that he had satisfied himself on the law, ruled that there was sufficient information in the transcript to form the basis for the question whether defendant had made the statement which the prosecutor had inquired about the night before, but that the prosecutor would be bound by the answer. It was at that point that defendant’s attorney indicated that he would like the opportunity to speak to his client and, the Trial Judge having responded “Not while he’s testifying”, objected that defendant was being denied the right to consult with counsel.

Defendant was then recalled and cross-examination continued. His further testimony revealed that he had in fact talked to his attorney for a few minutes after the court closed on the 14th, though not about “business” because “the court ordered no conversation regarding my testimony.” After cross-examination on other issues defendant was asked whether during the early morning hours of December 26, 1974 he told a person in Bonnanne’s Bar that he was with the victim and that he lost his mind and killed her. Following defendant’s denial, a further sidebar conference was requested on the question whether privilege proscribed cross-examination of defendant concerning a claimed prior inconsistent statement made by defendant to the psychiatrist who examined defendant for the People as to competency, without revealing in the question to whom the statement had been made. At the end of that conference the prosecutor asked to have the 911 transcript marked for identification, a recess was taken and defendant’s attorney again asked and was denied permission to speak to his client during the recess and again objected to defendant’s “being denied an opportunity to speak to me during the recess.” After recess, during a further sidebar conference, the Trial Judge ruled against the statement to the psychiatrist, differentiating it from the 911 caller in that the statement to the psychiatrist was governed by the privilege statute.

At that juncture, without further request from defendant’s attorney, the Trial Judge brought up the application to permit defendant to confer with his attorney, and noting that he had prevented such a conference “while I was researching my decision, while this questioning was going on”, stated that “Now, I have made my determination here you can talk to him.” Defendant’s attorney’s response was “He has some questions he wanted to ask me.” A conference between defendant and his attorney followed during the recess and cross-examination and redirect examination of defendant was then completed.

Apparent from the foregoing is it that defendant’s attorney never (on the 14th or 15th) interposed an objection addressed to his inability to speak to his client during the overnight recess. What he did object to on the 15th was defendant’s not being able to confer with his attorney during the recesses on the morning of the 15th. As to those rulings, however, there was no error since it was well within the Trial Judge’s discretion to proscribe conference when a negative answer by defendant would foreclose the prosecution on the issue. This is not to say that defendant’s attorney in the instant case did not, or that defendants’ attorneys generally will not, realize the impropriety of advising defendant how to answer such a question. Rather, it is to say that it is not error for the Trial Judge in such a situation to make the ruling here made preventing conference until questioning on the issue has been concluded.

Thus I concur in reversal because the June 15 rulings were not erroneous and, the 911 caller issue having been raised immediately before adjournment on the 14th, a ruling proscribing conference concerning defendant’s testimony during the overnight recess would not have been error had one been explicitly made. However, no objection concerning overnight recess having been made on either the 14th or the 15th, I agree that that issue was not preserved and that there must, therefore, be a remittal.

Chief Judge Cooke and Judges Jasen, Gabrielli, Wachtler and Fuchsberg concur with Judge Jones; Judge Meyer concurs in result in a separate opinion.

Order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein. 
      
      . That the appellate court’s reversal was not predicated solely on what it regarded as an error of law occurring when defendant’s access to counsel was interferred with on the morning of June 15 is apparent from its description of the trial court’s error as one preventing “all meaningful communication between the defendant and his attorney from the morning of June 14, 1976 until some point during the trial on the next day”.
     
      
      . In view of the circumstance that the Appellate Division never discretely-ruled on this issue we have no occasion to express any opinion with respect to it.
     
      
       We, therefore, could not reach the question whether, if he had, the fact that the Trial Judge’s June 14 ruling was limited to discussion of “your testimony” rather than proscribing talking to the attorney “about anything” (cf. Geders v United States, 425 US 80, 89, n 2) would sufficiently distinguish the instant case from Geders, as the prosecutor argues.
     