MOLLEN, P.J. (dissenting).

I dissent and would affirm. It was error for the plaintiff to have been excluded during the selection of the jury. However, in the absence of any prejudice, the error was not so egregious as to require reversal.

HAWKINS, J. (dissenting).

I dissent and vote to affirm.

The action was called for selection of a jury. Defendant's counsel thereupon inquired if plaintiff, a paraplegic confined to a wheelchair, intended to be present in the jury selection room. Upon being informed that such was plaintiff's intention, defendant moved to exclude plaintiff, whereupon an immediate ruling was sought from the court. The trial court sustained the objection, stating: "The court sees no purpose except a possible inflammation of the whole panel at this point. Of course, the plaintiff will be present all during the trial in his wheelchair, and the jury will be there to see his condition. But for the selection of the jury, I will rule that he will not be present."

In so ruling, in my opinion, the court did not commit reversible error.

The action arose from an incident involving plaintiff and a Nassau County detective. Plaintiff was shot twice by a police officer who, at the time, had been acting as a "decoy". The officer, attacked from the rear, was struck on the head with a hard object and seized by his throat. The police officer's defense was self-defense. As a result of the incident, plaintiff was grievously wounded and rendered a permanent paraplegic. After a trial lasting some three weeks, the jury returned a verdict (five to one) for the defendant.

The majority, in reversing, holds that "the fundamental constitutional right of a person to have a jury trial in certain civil cases includes therein the ancillary right to be present at all stages of such a trial, except deliberations of the jury (Leonard's of Plainfield v Dybas, 130 N.J.L. 135)." Also cited is Shepherd v Swatling ( 36 Misc.2d 881). Unquestionably, a party has a right to be present at all stages of a trial except for the deliberations of the jury. The question remains whether the examination of prospective jurors is such an integral and inseparable stage of a trial.

Conceding that the voir dire examination of members of the jury panel is not considered part of the "trial of the facts", the majority, nevertheless, would include that as an essential part of the trial on the premise that a party or his counsel must be present at all phases of a trial save, of course, for the jury's deliberations.

The majority opinion stresses Florida Greyhound Lines v Jones ( 60 So.2d 396 [Fla]). A close reading of that case reveals that it was the defendant who, for the first time on the appeal, raised the question of prejudice resulting from the plaintiff having appeared before the jury on a stretcher, attended by a nurse and a hospital attendant. That court held it was proper for plaintiff to be so present and so attended since there was no question of the injury being feigned, or the jury being "victimized", or "deceived by the subterfuge". There is, however, nothing in that opinion to indicate that the plaintiff was also present and in such manner during the voir dire examination of the jury panel.

Leonard's of Plainfield v Dybas (supra), cited as authority for reversal, is also inapplicable. The error there was committed by the Trial Judge entering the jury room upon the jury's request for further instructions, but doing so with neither counsel being present (130 NJL, at p 138): "Here, the additional directions were given to the jury in secret. Appellant's counsel was denied admittance to the proceeding. This was a flagrant disregard of a fundamental right."

Nor is Shepherd v Swatling (supra) pertinent, for Judge COOKE, then sitting in Special Term in Rensselaer County, held merely that upon the pretrial examination of two defendants, he would not direct that each be examined separately on the ground that a party cannot be excluded from the trial or pretrial proceeding (36 Misc.2d, at p 882): "Since the exclusion of a party on a trial would not be proper, it will not be ordered on the examination before trial."

Particularly pertinent, on the contrary, is People v O'Keefe ( 281 App. Div. 409, affd 306 N.Y. 619, cert den 347 U.S. 989), which held that it was not prejudicial error for a Trial Judge to conduct an interview of a juror, who had been accepted but might possibly be disqualified, in the absence of defendants' counsel. Granted that there was a question of waiver by defendants, the court, nevertheless, stated (281 App. Div., at p 417): "In any event, the absence of the defendants during a part of the process of selecting the jury was merely a defect or irregularity in the organization of the jury. As has already been pointed out, no prejudice was suffered by the defendants by reason of their absence. A defect or irregularity of this character is immaterial, so long as there was in the end a competent and lawful jury and 'No juror was permitted to sit to whom the defendant made any substantial objection' (People v. Decker, 157 N.Y. 186, 192-193; see, also, Cox v. People, 80 N.Y. 500, and Ferris v. People, 35 N.Y. 125)."

The CPLR is of little aid in resolving the issue. Upon its original enactment, CPLR 4107 simply provided: "Judge present at examination of jurors. On application of any party, the judge shall be present at the examination of the jurors."

A note to the rule as it then read states (Legislative Studies and Reports, McKinney's Cons Laws of NY, Book 7B, CPLR 4109, p 134): "This rule has no counterpart in the civil practice act or in the rules of civil practice."

Thereafter, effective September 1, 1964, CPLR 4107 was amended to substitute the word "a" for the word "the" so that it presently reads: "On application of any party, a judge shall be present at the examination of the jurors."

The amendment was a compromise since, as Professor McLaughlin in his Supplementary Practice Commentary states, the Supreme Court Trial Justices recommended "that the presence of a judge at a voir dire would remain in the discretion of the court, and would not become mandatory even where the parties requested a judge."

The commentary concludes: "The Judicial Conference in amending the rule in 1964 noted the sentiment of the justices, but withheld making any change in that respect, electing rather to await the results of experience with the rule in its present form."

Significantly, there are no citations construing either the former or the present CPLR 4107.

Surely, if a Trial Judge's presence at the voir dire can be dispensed with, so can a party's, for clearly the jury selection process is preparatory to and not the very trial; otherwise, the Trial Judge's absence would be inexcusable whether or not CPLR 4107 was invoked by either party.

The majority speaks of a "party" and "not the attorney" demanding a jury trial under CPLR 4102, or invoking CPLR 4107 to have a Judge preside over the selection of the jurors from the array. Realistically, for "party" there must be substituted his attorney, for it is the latter who necessarily and actually makes the requisite demand or motion.

We should take judicial notice that the voir dire examination in civil actions in this Department is rarely conducted in the presence of the Trial Judge. The Legislative Study and Report to CPLR 4107 notes (McKinney's Cons Laws of NY, Book 7B, CPLR 4107, p 134): "Although the judge usually presides in upstate courts, in New York City it is customary for the attorneys to conduct the voir dire without the judge being present, questions being referred to him when necessary."

That practice is not confined to New York City, but obtains virtually throughout the State. Indeed, barring an extraordinary situation, it is a rarity for the Trial Judge to be present. It thus follows that the voir dire has never been regarded as so vital as to compel uniformly the presence of the Trial Judge.

In asserting it was jurisdictionally defective to have excluded plaintiff, the majority, inter alia, cite Leed v Robert Joshua, Ltd. (72 N.Y.S.2d 3). The sparse holding there simply reaffirmed that whereas witnesses could be excluded — presumably from the trial — it does not apply to a party who has a right to be present at all times. Again, no one questions the right of this plaintiff to have been present throughout the trial; in fact, he was.

Gallavan v Hoffner (154 Col 353) held that the trial court committed reversible error in denying a continuance during the second day of an actual trial. Plaintiff therein had been injured by falling in the lady's restroom of the courthouse on the morning of the trial; she was hospitalized for that injury at midnight of that day. The trial court, nevertheless, ordered the trial to continue — not the voir dire. Purvis v Inter-County Tel. Tel. Co. ( 203 So.2d 508 [Fla]) is similarly inapplicable. That plaintiff's action was for personal injuries. The issue there posed was (p 509) "'[d]id the court commit prejudicial error in excluding the plaintiff from the courtroom during his own trial on the grounds that his physical appearance and conduct may have resulted in prejudice to either party?'" Plaintiff, whose mental attitude and physical appearance made his rationality questionable, had no guardian to represent him. After careful analysis of the record, the court concluded that the exclusion of plaintiff from the courtroom was error. Again the voir dire was not involved, but the very trial itself.

In Pascarella v Pittsburgh Rys. Co. ( 389 Pa. 8) the Supreme Court of Pennsylvania held that plaintiffs suing for personal injuries were not required to leave the courtoom while their physician was testifying as to the extent of their injuries. Raper v Berrier ( 246 N.C. 193), a custody proceeding, held that although a child could be questioned in open court, the court could do so privately only by consent of the parties.

Nor are any of the other authorities cited applicable. Pratt v Bishop ( 257 N.C. 486) involved a failure to object by motion before the trial to the admissibility of several depositions. Vroman v Kempke ( 34 Wis.2d 680) involved the timeliness of an offer in settlement under a Wisconsin statute whereby, if made "before trial", a defendant could save costs. The court there held it had to be made appreciably prior to the date of the actual trial or before the impaneling of the jury. In Matter of McIntyre ( 78 N.D. 10, 28) the phrase "the impaneling and swearing of the trial jury is a part of the trial" refers to the belatedness of the objection to the court's jurisdiction having, inter alia, been made after the jury had been impaneled and sworn.

The only adjudication giving some inferential support to the majority's position which my research has unconvered is Harrington v Decker ( 134 Vt. 259). The procedure there employed was for the court clerk to notify counsel when a jury was to be drawn. Counsel, in turn, notified his client of a change in schedule on the morning of the stated day. Plaintiff, however, failed to appear until after the jury had been impaneled. The court, nevertheless, refused to upset the jury's verdict although reasserting the right to a jury trial, stating, in a very terse opinion (p 261): "This right carries with it the privilege to be present at the selection of the jury. Although this Court does not approve of the non-consensual drawing of civil juries in the absence of the parties, the plaintiff's right in the case at bar was not denied in view of the failure of the plaintiff to appear when properly notified or to show inability to be present, and the failure of the plaintiff to show any prejudice."

Apart from the parochial procedure not commending it as a precedent for our court to adopt, and it being dicta, at bar, as in Harrington, there is no showing of prejudice.

Significantly, although deemed an historically rooted and nurtured right, nevertheless, the prevailing opinion, tentatively and cautiously classifies it as an "ancillary right." Webster's New Collegiate Dictionary defines "ancillary" as "subordinate, subsidiary"; "ancillary, supplementary". The American Heritage Dictionary states it derives from the Latin "ancillaris", i.e., "servile". By summoning these venerable founts of our jurisprudence, the impression imparted is that our contemporary mode of selecting jurors, like Athena, sprang full-grown from the Zeus of Magna Carta, and that after our Independence, save for preserving jury trials in civil actions by adoption of the Seventh Amendment, we merely followed English law and practice. History, however, is to the contrary. As further noted in the Legislative Studies and Reports to CPLR 4107: "The New York system is based on a practice which evolved early in the history of the United States. In England, the common law rule never authorized an examination of jurors upon their appearance in court before they were challenged. Challenges were rarely used, and only if used was there any voir dire examination of a juror. Early in the history of the United States, it became usual for the lawyers to interrogate the members of the jury panel as a basis for the exercise of challenges. Vanderbilt, Judges and Jurors: Their Functions, Qualifications and Selection 72 (1956)."

The attitude of the Colonists and their immediate successors is best epitomized by Roscoe Pound in The Spirit of the Common Law. Prefacing his comments by referring to James Fenimore Cooper's "Pioneers" and its "striking picture" of New York in 1833, and noting "the spirit of our American common-law polity" respecting the stilted, technically complicated English procedure, Pound stated (p 124): "It presupposes a public which in the jury box may be relied upon to enforce law and vindicate justice between man and man intelligently and steadfastly. In other words, our common-law polity presupposes an American farming community of the first half of the nineteenth century; a situation as far apart as the poles from what our legal system has had to meet in the endeavor to administer justice to great urban communities at the end of the nineteenth and in the twentieth century."

If resort must be had to Blackstone, Chase's third edition of Blackstone's Commentaries, editing Book 3, chapter 23 of Blackstone's Commentaries, chapter 18, entitled "Of the Trial By Jury", contains no reference whatever to a litigant participating in the voir dire. Indeed, after reviewing the origins of trial by jury, which Blackstone asserts long antedated Magna Carta, and after discussing challenges to the "array" and to the "polls", he merely concludes (p 795): "When a sufficient number of persons empanelled, or talesmen, appear, they are then separately sworn, well and truly to try the issue between the parties, and a true verdict to give according to the evidence; and hence they are denominated the jury, jurata, and jurors, sc. juratores" (emphasis supplied).

The majority stresses Fillippon v Albion Vein Slate Co. ( 250 U.S. 76, 81). That ruling of the Supreme Court of the United States, I submit, is totally inapplicable. The reversal there resulted from a response to an inquiry from the jury which had retired to consider the verdict. The Trial Judge sent the jury a supplementary instruction, in writing, on the question of contributory negligence. Such unilateral judicial conduct was deemed reversible error for neither the parties nor their counsel were present; hence, there was no opportunity to make timely objection or to take exception to the instruction. The manner in which it was given was deemed not equivalent to being present upon an instruction, which no one will gainsay is part of a trial.

The inescapable conclusion is that Magna Carta and the Federal and State Constitutions were observed, for plaintiff, unquestionably, did have a trial by his peers who were selected by due process and who determined the issue after a full trial. In sum, what plaintiff sought was to confront an entire array with demonstrative evidence prior to the very trial. The plaintiff's right to a trial by jury is not an issue in this appeal.

Plaintiff was not excluded from the trial; nor were the jurors deprived of observing plaintiff thoughout the trial. Under the circumstances, the trial court should not be deemed to have committed reversible error. That such exclusion was discreetly exercised is buttressed by plaintiff necessarily contending — or speculating — that the jurors selected or unselected would have arrived at a contrary verdict had they observed him at the voir dire. The jurors selected found no cause of action. Paradoxically, if plaintiff is correct, it vindicates the trial court's excluding him since it confirms that his presence was designed for that very purpose.

In sum, even if the ruling was erroneous, it was not so grievous as to constitute reversible error.

SHAPIRO and MARGETT, JJ., concur with TITONE, J.; MOLLEN, P.J., dissents and votes to affirm the amended judgment with a memorandum; HAWKINS, J., dissents and votes to affirm the amended judgment, with an opinion.

Amended judgment of the Supreme Court, Nassau County, entered February 3, 1977, reversed, on the law, and new trial granted, with costs to abide the event.