New York Law Review

Tag: right to be present

  • People v. Harris, 76 N.Y.2d 810 (1990): Defendant’s Right to Be Present During Jury Clarification

    76 N.Y.2d 810 (1990)

    A defendant’s right to be present during jury instructions does not extend to brief communications clarifying a jury’s request for a readback of testimony when the communication is purely ministerial and unrelated to substantive legal or factual issues.

    Summary

    Defendant was convicted of multiple charges. During deliberations, the jury requested a readback of testimony, leading the judge to briefly enter the jury room with counsel’s consent, but without the defendant, to clarify the request. The New York Court of Appeals affirmed the conviction, holding that this limited communication did not violate the defendant’s right to be present at a material stage of trial because it was a ministerial act of clarification, not the giving of information or instruction under CPL 310.30, and did not impact the defendant’s opportunity to defend himself.

    Facts

    The defendant was tried on charges stemming from an incident where he allegedly imprisoned, threatened, and assaulted the complainant. During jury deliberations, the jury sent a note requesting a readback of the complainant’s testimony from a specific point. The trial judge, accompanied by defense counsel and the prosecutor, briefly entered the jury room to clarify the scope of the request, specifically whether they wanted testimony ‘about’ or ‘of’ the complainant. The defendant was not present during this brief exchange.

    Procedural History

    The defendant was convicted at trial. He appealed, arguing that his absence during the judge’s communication with the jury violated CPL 310.30 and his constitutional right to be present at a material stage of his trial. The Appellate Division affirmed the conviction. The New York Court of Appeals affirmed the Appellate Division’s order, upholding the conviction.

    Issue(s)

    Whether a trial judge’s brief communication with a deliberating jury, in the absence of the defendant, to clarify a request for a readback of testimony, constitutes a violation of CPL 310.30 and the defendant’s constitutional right to be present at a material stage of trial.

    Holding

    No, because the communication was a ministerial inquiry to clarify the jury’s request and did not constitute the giving of “information or instruction” under CPL 310.30, nor did it impact the defendant’s opportunity to defend against the charges.

    Court’s Reasoning

    The Court of Appeals reasoned that a defendant has a right to be present when their presence has a reasonably substantial relation to their opportunity to defend against the charges, including during instructions to the jury. This right is protected by due process and CPL 310.30. However, the court distinguished the communication in this case, emphasizing that it was solely to clarify the jury’s request, not to provide any substantive information or instruction. The court stated: “In this case, the court’s communication with the jury in defendant’s absence consisted solely of a question to clarify whether a readback request for ‘testimony about [complainant]’ was a request for ‘testimony of the victim, [complainant]’ (emphasis added).” The court concluded that this ministerial communication was wholly unrelated to the substantive legal or factual issues of the trial, and therefore, the defendant’s presence was not constitutionally required.

    The dissenting judges argued that clarifying a jury’s request is an inherently judicial task requiring discretion and judgment, and that the defendant’s presence is necessary to ensure a full opportunity to defend. The dissent stated that the colloquy “directly concerned which portions of the trial testimony would be reread — clearly a matter of substance of crucial significance to the trial.” They also pointed out that the court’s interpretation of CPL 310.30 was too narrow, as the task of clarifying a jury request is often intertwined with giving instruction or information.

    The majority rejected the dissent’s argument, holding that the clarifying question was not instructional and that the defendant’s presence would not have added to their opportunity to defend. The court’s decision emphasizes the importance of distinguishing between substantive instructions and purely ministerial communications with the jury.

  • People v. Cain, 76 N.Y.2d 119 (1990): Defendant’s Right to Be Present During Jury Instructions

    People v. Cain, 76 N.Y.2d 119 (1990)

    A defendant has an absolute right to be present during supplemental jury instructions, and a violation of this right requires reversal of the conviction regardless of prejudice, particularly when the trial court has not yet formally accepted the verdict.

    Summary

    Asher Cain was convicted of robbery, kidnapping, and burglary. After the jury announced its verdict and a juror expressed reservations during polling, the judge questioned the juror in the robing room, outside Cain’s presence, regarding the acting-in-concert theory. The New York Court of Appeals reversed Cain’s conviction, holding that the robing room proceeding constituted further jury instruction, thus requiring the defendant’s presence. The court emphasized that because the judge had not yet formally accepted the verdict, the trial was ongoing, and Cain’s absence violated his statutory and constitutional rights. The court also found that the kidnapping charge merged with the robbery charge, requiring its dismissal.

    Facts

    Cecil Kerrutt, a restaurant owner, was accosted by three armed men (including Cain) who demanded money, specifically $50,000. The men took Kerrutt to his home, forcibly detained his family while searching for the money. Unsatisfied with the amount found, the men returned to the restaurant with Kerrutt. Kerrutt escaped at the restaurant. Cain, along with codefendants Dawson Sharpe and David Jones, were charged with robbery, kidnapping, burglary, and unlawful imprisonment.

    Procedural History

    The jury found Cain and Sharpe guilty on all counts and acquitted Jones. During polling, a juror equivocated and requested a private discussion with the judge. A robing room discussion ensued, outside the presence of the defendants, where the judge clarified the acting-in-concert theory for the juror. The Appellate Division affirmed Cain’s conviction. The New York Court of Appeals granted leave to appeal and reversed the conviction.

    Issue(s)

    1. Whether Cain’s right to be present during a material stage of his trial was violated when supplemental jury instructions were given to a juror in the robing room outside of his presence.

    2. Whether the kidnapping count should have merged with the robbery count, precluding a separate conviction for kidnapping.

    Holding

    1. Yes, because the robing room colloquy constituted further jury instruction under CPL 310.30, and Cain had a right to be present during that proceeding.

    2. Yes, because the asportation and restraint of Kerrutt were incidental to and inseparable from the defendant’s overall scheme to rob Kerrutt.

    Court’s Reasoning

    The Court of Appeals relied on People v. Ciaccio, which established a defendant’s right to be present with counsel at all material stages of trial, including proceedings dealing with jury instructions. The court emphasized that supplemental instructions are critical because they are given after the jury has already deliberated, making them potentially determinative. The court stated, “[S]ince they ‘com[e] after the jury has already once retired, they may well be determinative of the outcome of the case, coming as they do in response to questions raised by the jurors themselves.’” Because the trial court had not formally accepted the verdict when the robing room discussion occurred, the trial was still ongoing, and Cain’s absence mandated reversal regardless of prejudice.

    Regarding the merger doctrine, the court cited People v. Cassidy, stating that the doctrine “is intended to preclude conviction for kidnapping based on acts which are so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not be fairly attributed to them.” The court found that the movement of Kerrutt was incidental to the robbery; thus, the kidnapping conviction could not stand. The return trip to the restaurant reinforced this conclusion.

  • People v. Mehmedi, 69 N.Y.2d 757 (1987): Defendant’s Right to Be Present During Jury Instructions

    People v. Mehmedi, 69 N.Y.2d 757 (1987)

    A defendant has an absolute and unequivocal right to be present during jury instructions, and failure to comply with CPL 310.30 (mandating defendant’s presence) is a substantial departure from statutory procedure, rendering harmless error analysis inappropriate.

    Summary

    Mehmedi was convicted of weapons possession after a search of a car he was driving revealed unlicensed guns. During jury deliberations, the jury asked who opened the console where the guns were found. The judge, in the defendant’s absence, and over defense counsel’s objection to the wording, sent a note stating the police officer said the defendant did, but the defendant denied it. The Appellate Division reversed, citing the defendant’s absence during jury instructions. The Court of Appeals affirmed, holding that the defendant’s right to be present during jury instructions under CPL 310.30 is absolute, and a violation necessitates a new trial without harmless error analysis.

    Facts

    Police officers stopped and searched a car driven by Mehmedi. The search revealed two loaded, unlicensed guns. The police officer testified he saw bullets in the console between the front seats when Mehmedi opened the console to look for the car’s registration. Mehmedi denied opening the console and claimed he had no knowledge of the guns, which belonged to his brother.

    Procedural History

    Mehmedi was indicted and tried for weapons possession. The jury convicted him. The Appellate Division reversed the conviction and ordered a new trial because the trial court instructed the jury in Mehmedi’s absence. The People appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the trial court erred by answering a question from the deliberating jury in the absence of the defendant.
    2. Whether the error of instructing the jury in the defendant’s absence is subject to harmless error analysis.

    Holding

    1. Yes, because CPL 310.30 mandates the defendant’s presence during jury instructions.
    2. No, because the defendant’s right to be present during jury instructions is absolute, and a violation is a substantial departure from statutory procedure, precluding harmless error analysis.

    Court’s Reasoning

    The Court of Appeals stated that CPL 310.30 requires the court to return the jury to the courtroom when they request additional instructions and, “in the presence of the defendant,” provide the requested information. The Court emphasized that failure to comply with CPL 310.30 constitutes a substantial departure from a statutory provision that affects “‘the organization of the court or the mode of proceedings prescribed by law’” (citing People v. Ahmed, 66 N.Y.2d 307, 310). The court underscored the fundamental right of a defendant to be present at all material stages of a trial. CPL 310.30 makes this right “absolute and unequivocal.” The Court reasoned that because the defendant was absent during a material part of his trial, harmless error analysis was inappropriate. The court distinguished cases where harmless error analysis might apply, such as People v. Mullen, 44 N.Y.2d 1 (Trial Judge’s in-chambers questioning of juror) and People ex rel. Lupo v. Fay, 13 N.Y.2d 253 (defense argument for mistrial). The Court explicitly stated, “Because this defendant was absent during a material part of his trial, harmless error analysis is not appropriate.” Thus, any violation of CPL 310.30 requires automatic reversal.

  • People v. McMahon, 46 N.Y.2d 447 (1978): Improper Jury Communication by Court Clerk

    People v. McMahon, 46 N.Y.2d 447 (1978)

    Unauthorized communications by a court clerk to a deliberating jury regarding the judge’s supposed desire for a verdict constitute reversible error, especially when the communication is not authorized by the court and occurs outside the presence of the defendant and counsel.

    Summary

    McMahon was convicted of robbery. During jury deliberations, the court clerk allegedly told the jury that the judge wanted them to continue deliberating because a lot of time and money had been invested in the case. The defense moved to set aside the verdict based on this improper communication, submitting affidavits from jurors. The prosecution did not dispute the affidavits but argued that even if true, they were not grounds for vacating the verdict. The Court of Appeals reversed, holding that the unauthorized communication was a fundamental error requiring a new trial because the defendant has a right to be present during all critical stages of trial, including supplemental jury instructions. The court also noted that expert testimony bolstering the victim’s credibility was improperly admitted.

    Facts

    McMahon was accused of hijacking a truck. The jury deliberated for a significant time, sending notes indicating deadlock. After repeated deliberations spanning multiple days, the jury ultimately reached a guilty verdict. Following the verdict, two jurors provided sworn affidavits stating that the court clerk had entered the jury room and told them the judge wanted them to continue deliberating because a lot of time and money had been invested in the case. The judge had not, in fact, sent this message.

    Procedural History

    The trial court convicted McMahon. The Appellate Division affirmed. McMahon appealed to the New York Court of Appeals, arguing that the clerk’s communication with the jury was improper. The Court of Appeals reversed the Appellate Division’s order and ordered a new trial.

    Issue(s)

    1. Whether an unauthorized communication by a court clerk to a deliberating jury, conveying the impression that the judge desires a verdict due to the time and money invested in the case, constitutes reversible error.
    2. Whether the admission of expert testimony that essentially bolsters the credibility of a witness is permissible.

    Holding

    1. Yes, because a defendant has an absolute right to be present with counsel during all critical stages of trial, including communications with the jury, and unauthorized communications from court personnel violate this right.
    2. No, because it is the sole province of the jury to determine the credibility of witnesses, and expert testimony designed solely to bolster a witness’s testimony is an improper usurpation of the jury’s function.

    Court’s Reasoning

    The Court of Appeals emphasized the defendant’s right to be present, with counsel, at all stages of trial where his presence has a relation to his opportunity to defend against the charge. This right extends to communications with the jury, especially supplemental instructions after the jury has retired. CPL 310.30 requires notification of counsel and the defendant’s presence during court communications with the jury. The court stated, “Where the court’s instructions are supplemental, coming after the jury has already once retired, they may well be determinative of the outcome of the case, coming as they do in response to questions raised by the jurors themselves. As such, the presence of the defendant and his counsel is constitutionally required whenever supplemental instructions are given, and failure to notify them is a fundamental error”. The court found the clerk’s communication was improper, even though the judge did not authorize it, as court officers are prohibited from communicating with jurors except as authorized by the court or for purely administrative duties (CPL 310.10). The court found that the People did not dispute the facts alleged in the affidavits, which were sufficient to support the motion to set aside the verdict. Regarding the expert testimony, the court held that it was improper because it effectively affirmed the credibility of the victim, which is solely the jury’s role. “This ‘opinion’ evidence was the precise equivalent of affirming the credibility of the People’s witness through the vehicle of an opinion that many hijackings occur as the victim had related.” This type of bolstering is not permitted.

  • People v. Mullen, 44 N.Y.2d 1 (1978): Defendant’s Right to be Present at Trial Limited

    People v. Mullen, 44 N.Y.2d 1 (1978)

    A defendant’s right to be present at trial, whether derived from statute or due process, is not absolute and is only required when their absence would have a substantial effect on their ability to defend against the charges.

    Summary

    The New York Court of Appeals addressed whether a defendant’s absence from an in-chambers questioning of a juror, conducted by the trial judge with the prosecutor and defense counsel present, violated CPL 260.20 or due process. The court held that it did not, finding that the defendant’s presence was not essential because the inquiry was informal, occurred after jury selection, and did not substantially affect the defendant’s ability to defend himself. The presence of counsel was deemed sufficient to ensure a fair hearing.

    Facts

    Defendant Mullen was indicted on multiple drug-related charges. During jury selection, after eight jurors were sworn, one juror stated the defendant looked familiar, mentioning a past break-in at his workplace. After the jury was impaneled and sworn, the judge held a hearing in chambers with the juror, prosecutor, and defense counsel present, but without the defendant. The juror assured the court that his prior knowledge would not influence his verdict. Defense counsel did not question the juror. Both counsel agreed with the court’s conclusion that no statutory disqualification existed.

    Procedural History

    The jury found Mullen guilty of criminal possession of dangerous drugs and criminally using drug paraphernalia. The Appellate Division unanimously affirmed the conviction. This appeal followed, challenging the trial court’s in-chambers questioning of the juror in the defendant’s absence.

    Issue(s)

    Whether an in-chambers questioning of a seated juror by the trial judge, in the presence of the prosecutor and defense counsel but in the absence of the defendant, violates CPL 260.20 or denies the defendant due process.

    Holding

    No, because the defendant’s absence did not have a substantial effect on his ability to defend himself, and the presence of counsel was sufficient to ensure a fair hearing.

    Court’s Reasoning

    The court reasoned that CPL 260.20, requiring a defendant’s presence during trial, does not demand literal application. Substantial performance of its terms is sufficient. Quoting Maurer v. People, the court acknowledged that proceedings such as impaneling of the jury, introduction of evidence, summations and the court’s charge are all part of trial because the defendant’s presence is considered essential to justice. Due process requires a defendant’s presence only when a fair hearing would be thwarted by their absence, focusing on whether the absence substantially affects the ability to defend. The court distinguished this case from situations where the defendant’s presence is crucial, citing People ex rel. Fein v. Follette, where questioning jurors about a newspaper article outside the defendant’s presence was deemed not to violate a substantial right. The court noted, “[t]urning to an analysis of the present case, we conclude that the Trial Justice’s questioning of the juror in chambers under the circumstances present here did not constitute a material part of the trial.” The court concluded that the in-chambers questioning was informal, occurred after jury selection, and did not prejudice the defendant, as counsel was present. The court emphasized that the hearing had nothing to do with guilt or innocence.

  • People v. Epps, 37 N.Y.2d 343 (1975): Waiver of Right to Be Present at Trial by Incarcerated Defendant

    People v. Epps, 37 N.Y.2d 343 (1975)

    An incarcerated defendant can waive their right to be present at trial, but such a waiver is suspect and subject to careful examination to ensure it is knowing, voluntary, and intelligent, free from official coercion or obstruction.

    Summary

    Donald Epps, incarcerated during his trial for multiple violent felonies, refused to attend court proceedings as part of an inmate boycott. The trial continued in his absence, and he was convicted. Epps appealed, arguing that an incarcerated defendant cannot voluntarily waive their right to be present at trial. The New York Court of Appeals affirmed the conviction, holding that while the right to be present can be waived even by incarcerated defendants, such waivers must be carefully scrutinized for voluntariness and knowledge. The Court found no evidence of official coercion in Epps’s absence, which stemmed from his participation in the boycott after being advised of his right to attend.

    Facts

    Donald Epps was charged with multiple counts of attempted murder, sexual abuse, sodomy, coercion, grand larceny, and assault stemming from an attack on two women. He was incarcerated pending trial. Jury selection occurred with Epps present. After the first victim testified to the brutal acts committed against her, Epps refused to attend the trial on subsequent days, participating in a jail boycott. The court and his attorney advised him to attend, warning him that the trial would proceed in his absence. Epps remained absent, and the trial continued. Defense counsel rested without calling any witnesses due to Epps’s absence.

    Procedural History

    The jury convicted Epps on multiple counts. Epps moved to vacate his conviction, arguing that his trial in absentia violated his right to be present. The trial court denied the motion. The Appellate Division affirmed. Epps appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether an incarcerated defendant is capable of waiving the right to be present at trial.

    2. Whether Epps knowingly, voluntarily, and intelligently waived his right to be present, given his incarceration and participation in an inmate boycott.

    Holding

    1. Yes, because the right to be present at trial, while fundamental, is waivable under both the Federal and State Constitutions, even by an incarcerated defendant.

    2. Yes, because the trial court determined that Epps had the opportunity to be present but failed to avail himself of the opportunity by his own volition, and there was no official conspiracy to deprive Epps of his right to be present.

    Court’s Reasoning

    The Court of Appeals acknowledged the historical roots of the right to be present at trial, tracing it back to early jurisprudence where absence could lead to outlawry. However, the court emphasized that the modern view, as established in Diaz v. United States, recognizes the right as being for the benefit of the accused and therefore waivable. “Whenever there is a waiver by an incarcerated defendant it will be suspect and subjected to careful examination. If a judicial inquiry discloses the slightest hint of official connivance or obstruction with respect to the defendant’s right to be present at his trial, that waiver will not be operative.”

    The Court distinguished Epps’s situation from cases involving official obstruction, noting that Epps’s absence stemmed from his voluntary participation in an inmate boycott. To allow such conduct to halt trials would set a dangerous precedent. “To condone this course of conduct, particularly where the defendant senses imminent conviction, would make a travesty of our criminal justice system.”

    Regarding whether Epps knowingly and intelligently waived his right, the Court found that Epps was repeatedly advised by the trial judge, his attorney, and Department of Correction personnel of the consequences of his absence. While having the defendant state his waiver on the record would be preferable, the Court noted the practical difficulties and potential dangers of forcing Epps to appear, especially given the ongoing boycott. The court determined that Epps understood the impact of his decision.

  • In re Cecilia R., 36 N.Y.2d 317 (1975): Juvenile’s Right to be Present at Dispositional Hearing

    In re Cecilia R., 36 N.Y.2d 317 (1975)

    A juvenile has a right to be present at a dispositional hearing concerning their supervision or treatment unless they waive that right or are properly excluded for disruptive behavior.

    Summary

    This case addresses the right of a juvenile to be present at a dispositional hearing in Family Court. Cecilia R., a 13-year-old girl, was adjudicated a Person in Need of Supervision (PINS). During her dispositional hearing, the judge excluded her while testimony regarding numerous placement rejections was presented. The New York Court of Appeals reversed the order of the Appellate Division, holding that Cecilia had a right to be present unless she waived that right knowingly or was properly excluded for disruptive behavior. The Court emphasized that the dispositional hearing is a critical stage, and the juvenile’s presence is vital to ensure a fair and accurate determination.

    Facts

    Cecilia R., a 13-year-old, was determined to be a Person in Need of Supervision (PINS). During the dispositional hearing, after an initial appearance, the Family Court Judge directed that Cecilia be removed from the courtroom during the testimony of a social worker. The social worker testified about the numerous rejections (23 in total) Cecilia had received from various placement agencies. Cecilia’s law guardian was present and did not object. Cecilia returned to the courtroom immediately after the social worker’s testimony. The Family Court then ordered her placement.

    Procedural History

    The Family Court, Kings County, ordered Cecilia’s placement after a dispositional hearing where she was excluded during part of the proceedings. The Appellate Division affirmed the Family Court’s order. The New York Court of Appeals reversed the Appellate Division’s order and remitted the matter to Family Court for further proceedings.

    Issue(s)

    Whether a juvenile has a right to be present at a dispositional hearing in Family Court concerning their supervision or treatment?

    Holding

    Yes, because a juvenile has a right to be present at a dispositional hearing unless they waive that right knowingly and intelligently, or are properly excluded for disruptive behavior or other compelling reasons.

    Court’s Reasoning

    The Court of Appeals held that the dispositional hearing is a critical stage of the proceedings, akin to sentencing in criminal court. The court reasoned that the juvenile’s presence is crucial to ensure a fair and accurate determination of the appropriate disposition. The Court emphasized that the juvenile has a right to be present and to participate in the hearing, including the right to confront witnesses and present evidence. The Court stated that “[t]he dispositional hearing is the most important stage of a PINS proceeding, since it determines what restrictions will be placed on the juvenile’s liberty.” The Court further noted that “[a]lthough a Family Court Judge has considerable discretion to exclude a juvenile from the courtroom for limited periods of time, this discretion is not unlimited.” The Court found no evidence that Cecilia had waived her right to be present or that she was disruptive. Therefore, her exclusion from the hearing was improper. The dissent argued that the judge had discretion to exclude Cecilia, particularly given the sensitive nature of the testimony regarding placement rejections, and that her law guardian’s failure to object indicated tacit approval. The dissent emphasized the futility of a new hearing, suggesting the outcome would be the same. However, the majority prioritized the juvenile’s right to be present and participate in the process absent a valid waiver or justifiable exclusion.

  • People v. Anderson, 16 N.Y.2d 282 (1965): Defendant’s Right to be Present at Suppression Hearings

    People v. Anderson, 16 N.Y.2d 282 (1965)

    A defendant in a felony case has a statutory and due process right to be present at a pre-trial suppression hearing where evidence is taken, because such a hearing is a critical stage of the trial that affects the defendant’s ability to confront accusers and advise counsel.

    Summary

    Defendants Anderson and Thompson were convicted of robbery. Anderson appealed, arguing his due process rights were violated because he was absent from a pre-trial suppression hearing concerning evidence later used against him. The New York Court of Appeals reversed the conviction, holding that Anderson’s absence from the suppression hearing, where testimony was taken, violated his right to be present at all material stages of the trial under New York law and the due process clause. The court reasoned that a suppression hearing is a crucial step in the prosecution and the defendant’s presence is necessary for a fair hearing. Thompson’s conviction was also reversed in the interest of justice.

    Facts

    Defendant Anderson was in custody awaiting trial for robbery. A pre-trial hearing was held to consider a motion to suppress certain evidence. Anderson was absent from the courtroom during this suppression hearing, and no explanation for his absence was provided in the record. The District Attorney presented testimony regarding the legality of the search that yielded the evidence. The motion to suppress was ultimately denied and the evidence was admitted at Anderson’s trial.

    Procedural History

    The trial court denied Anderson’s motion to suppress the evidence. Anderson was subsequently convicted of robbery. The Appellate Division affirmed the judgment of conviction. Anderson appealed to the New York Court of Appeals, arguing his due process rights were violated by his absence from the suppression hearing. The Court of Appeals granted permission to appeal.

    Issue(s)

    Whether a pre-trial suppression hearing, at which testimony is taken regarding evidence to be used against a defendant at trial, constitutes a part of the “trial” for purposes of Section 356 of the Code of Criminal Procedure, thus requiring the defendant’s presence.

    Holding

    Yes, because the purposes of section 356 of the Code of Criminal Procedure, the rationale of the applicable decisional law and the state’s guarantee of due process require that a defendant be present at a suppression hearing where testimony is taken.

    Court’s Reasoning

    The court reasoned that Section 356 of the Code of Criminal Procedure requires a defendant’s presence at a felony trial, including post-indictment proceedings where evidence is taken. The court equated a pre-trial suppression hearing, where testimony is presented, to a stage of the trial. The court emphasized the significance of suppression hearings stating, “ [A] denial of a motion to suppress evidence is a crucial step in a criminal prosecution; it may often spell the difference between conviction or acquittal.” The court cited People ex rel. Lupo v. Fay, stating that due process mandates the defendant’s presence to the extent necessary for a fair hearing, giving the defendant the opportunity to confront accusers and advise with counsel. The court rejected the argument that the defendant had a full opportunity to defend against a charge when a suppression hearing is held during his unexplained absence. The court found that distinguishing between the actual trial and the suppression hearing ignores the reasons underlying the right to be present when testimony is taken relating to evidence used against the defendant. The court stated, “Expediency may not dictate procedural changes so as to take from a defendant the right to be present at the taking of testimony, even at a pretrial suppression hearing.” The court recognized that the suppression hearing is not within the specific meaning of “trial” as previously defined. However, the court found it could be given a meaning broad enough to include the examination of criminal cases by a court in all their stages, especially where questions of fact are to be determined. The court concluded that the defendant’s absence from the hearing on the motion to suppress required a reversal of his conviction, and the codefendant’s conviction was reversed in the interest of justice because the improperly admitted evidence may have prejudiced the jury.