People v. Merrihew , 180 N.Y.S.2d 824 ( 1958 )

Defendant was convicted in the County Court of Ulster County, after trial by jury, of the crime of possessing a blackjack in violation of subdivision 1 of section 1897 of the Penal Law and the crime of possessing a dangerous weapon after a prior conviction. Defendant has appealed from the judgment of conviction. Among other issues raised, appellant contends that the Trial Judge gave instructions to the jury, other than those contained in his main charge, in the absence of appellant and his counsel. The record indicates that the jury returned for further instructions but contains no notation as to the presence of appellant or his counsel. The People contend that both appellant and his counsel were present, and have made a motion in this court upon affidavits to have the record corrected to so indicate. Appellant has submitted opposing affidavits. This is an issue that may be of considerable importance, but is one that should be resolved by the court below. The trial court should settle the record in all respects, and in this instance after a hearing. Only then will the record be in shape for a complete review in this court. The appeal will be held in abeyance pending a determination of this issue by the court below, and for that purpose the matter is remitted. Foster, P. J., Bergan, Gibson and Herlihy, JJ., concur.