dissent">Martuscello, J. (dissenting).

The evidence supports the view that during the early morning hours of December 25, 1974 the defendant attacked Sandra Zahler in her Kew Gardens apartment. Using a blunt instrument, probably a hammer, defendant crushed the left side of her skull. Sandra’s body was discovered on December 26, 1974 in a blood-spattered apartment. The majority, by extracting portions of the trial transcript and interpreting them in a way most unfavorable to the People, concludes that the defendant is entitled to a new trial on the ground that he was denied his right to counsel during the trial. I disagree. In my view a fair examination of the record shows that while Criminal Term committed error in regard to the issue of defense counsel’s consultation with the defendant, it does not warrant reversal.

As the majority notes, the trial commenced on May 21, 1976. At the conclusion of proceedings on Friday, June 11, 1976, the following discussion occurred between the court and Mr. Lombardino, defense counsel:

"mr. lombardino: I’m seeking the Court’s assistance in something. I want to spend time with the defendant tomorrow in preparation for the defense of this case. There is a facility, I understand, in the Department of Correction, a room which is seldom used, where an attorney can sit down and consult with his client in just about complete privacy. I would respectfully ask Your Honor to have someone from the Department of Correction, who is sitting inside now,—

"the court: Well, I have no control over the Department of Correction. All I can do is request them to afford you the opportunity to be able to talk to your client under circum*614stances that affords privacy. If there’s a room for that purpose, that’s up to them.

"me. lombardino: Well, if they won’t do it, that’s up to them. I would appreciate if Your Honor would ask them to afford me this opportunity to consult with my client tomorrow in this room they have over there, which is of a private nature.

"the court: Where is this, in the Queens House of Detention?

"mr. lombardino: Yes.

"the court: All right.”

On the next trial day, namely Monday, June 14, 1976, after reconvening, the following discussion occurred in court:

"the court: * * * Now, did you have an opportunity to talk to your client over the weekend?

"mr. lombardino: Yes, I did, your Honor.

"the court: All right. Let the record indicate that I spoke to the Corrections Department to afford you the opportunity to see him. I wanted you to note for the record that was done.

"mr. lombardino: Without your Honor’s intersession [sic] that never could have been possible because they let me stay there until 5 o’clock.”

Shortly thereafter defendant took the stand and testified in his own behalf about his activities on December 24, 25 and 26, 1974.

The majority correctly notes that before two recesses on June 14, 1976, the court told defense counsel and defendant not to confer. On neither occasion did defense counsel register any objection. At the conclusion of the proceedings on that day, the court recessed without mention of any restriction at all on defendant’s right to consult with his attorney.

On the next day, Tuesday, June 15, 1976, defense counsel for the first time made an issue of consultation with his client. Strangely, he did not commence discussion of the issue by stating that he wished to consult with his client but rather by stating that he wished "to place something on the record. I have a legal point to make.” Only then did counsel ask to consult with his client. The inference raised by the manner in which counsel raised the point is that he was seeking to make a record for purpose of appeal rather than to persuade the court to permit him to consult with his client (cf. United States v Leighton, 386 F2d 822, 823, cert den 390 US 1025). *615While the court refused to allow consultation between counsel and client, a short while later (37 pages in the transcript) the court rescinded the ban. The majority, seeking to bring this case within Geders v United States (425 US 80), concludes that the defense abided by this ban from Monday morning, June 14, 1976, until Tuesday morning June 15. The majority therefore maintains that the ban on consultation was of such long duration as to violate the principle of Geders (supra).In concluding that the defense abided by the ban for all of Monday and Tuesday morning, the majority points to defense counsel’s self-serving redirect examination of defendant where defendant indicates that he did not speak to counsel on the prior night (Monday night) because the court ordered that there be no consultation.

Regrettably the majority ignores a portion of defendant’s cross-examination during which the following occurred:

"Q Did you discuss the case with your attorney yesterday [Monday] at all?

"me. lombardino: I object.

"the court: Overruled.

"A Nothing to discuss except he told me to relax and be calm and come to Court.”

This comment reflects a lack of consultation not because of the judicial ban but, rather, because of a lack of a need to consult—a fact easy to understand after the long session held between counsel and client on Saturday, June 12, 1976. However, whether or not defendant abided by the ban is not the central issue of this appeal.

In Geders v United States (supra, p 91) the court stated the following in regard to a defendant (petitioner) who had been banned from consulting with his attorney: "The challenged order prevented petitioner from consulting his attorney during a 17-hour overnight recess, when an accused would normally confer with counsel. We need not reach, and we do not deal with, limitations imposed in other circumstances. We hold that an order preventing petitioner from consulting his counsel 'about anything’ during a 17-hour overnight recess between his direct- and cross-examination impinged upon his right to the assistance of counsel guaranteed by the Sixth Amendment.” The concurring opinion of Mr. Justice Marshall, as well as note 2 at page 89, which cites United States v Leighton (supra),makes clear that the court was not by its *616decision in Geders (supra)holding that brief bans on consultation between counsel and defendant were so violative of a defendant’s right to counsel as to warrant reversal. In Leighton(386 F2d 822, supra), the Court of Appeals for the Second Circuit, held that reversible error did not arise from the fact that defendant had been banned from consulting with his attorney during an 85-minute luncheon recess.

It is therefore obvious that for the majority to reverse it could not rely solely on the June 15 prohibition on consultation, which was of very brief duration, but that it also had to be able to include June 14 and the overnight period from June 14 to June 15. Such an approach faces two obstacles. One, the absence of any objections on June 14, and two, the fact that Criminal Term did not restate its prohibition when recessing at the end of the June 14 proceeding.

It seems that the majority addresses the latter problem by seeking to create the inference that the parties believed they were under a ban when the court recessed for the night on June 14. The inference is far from clear. More significantly, the undisputable fact is that an examination of the trial transcript shows the absence of any ban at the conclusion of the June 14 proceeding.

However, even if the point of an overnight ban is conceded, a further fact remains—the absence of any objection to the ban on June 14 and the lack of any request by counsel to confer with the defendant. That defense counsel, an attorney experienced in matters of criminal law, understood the significance of an objection in this regard is indicated by his statement to the court on the morning of June 15 that he wishes to place something on the record and has a "legal point” to make.

In order to avoid the effect of the lack of objection, the majority calls the error here one of fundamental constitutional right which is subject to review even in the absence of objection. I disagree. The error here is not of such nature as to warrant review in the absence of any objection. In this regard it is noteworthy that in Geders (425 US 80, supra) an objection had been raised (see United States v Burton, 584 F2d 485, 511, cert den 439 US 1069).

Since defendant did not object to the ban on consultation issued on June 14, the threshold issue is whether the error should be reviewed either in the interest of justice (CPL 470.15) or under the rule of People v Patterson (39 NY2d 288, *617affd 432 US 197). As to the former, review is certainly not warranted since the evidence of guilt is strong, and the harm which may have resulted from the error was minor and could not have conceivably affected the verdict (cf. People v Etheridge, 71 AD2d 861; People v Washington, 68 AD2d 90).

As to the latter, in Patterson (supra, pp 295-296) the court noted that there is a narrow exception to the requirement of a timely objection, stating that: "A defendant in a criminal case cannot waive, or even consent to, error that would affect the organization of the court or the mode of proceedings proscribed by law * * * the purpose of this narrow, historical exception [being] to ensure that criminal trials are conducted in accordance with the mode of procedure mandated by Constitution and statute.” The court held that errors which go to the essential validity of the proceedings conducted below should be reviewed even in the absence of an objection (see People v Thomas, 50 NY2d 467; People v Michael, 48 NY2d 1). People v Musolino (54 AD2d 22, 25, cert den 430 US 935)1 explained this aspect of Patterson (supra) in the following way: "The exemption found controlling in Patterson applies where the entire structure of the guilt-determining process is flawed.”

In United States v Horger (547 F2d 1204, cert den 434 US 840), a case dealing with the retroactivity of Geders (supra),a defendant was barred from consulting with his attorney overnight. Horger (supra)is instructive in regard to the issue of whether the Patterson exception is applicable here. The court in Horger (supra, p 1205), in discussing the nature of the error committed, stated: "Here there was no showing of any need for consultation between lawyer and client during the overnight recess. No prejudice is shown; counsel quite frankly claims none. In this case the integrity of the fact-finding process seemingly is implicated not at all. Even if we speculate that there may have been some communication between lawyer and client had the defendant-witness not been instructed as he was, the reliability of the fact-finding process is *618but slightly implicated.” Similarly, here there is no claim of prejudice,2 and the fact-finding process is seemingly implicated not at all. Accordingly, it cannot be said that the error committed here goes to the essential validity of the proceedings conducted below or that the entire structure of the guilt-determining process was flawed. Therefore, under the rule stated in Patterson (39 NY2d 288, supra), defendant’s failure to object on June 14 should preclude our review of the error committed on that day.

In sum, our review of the error below should be limited to what occurred on June 15, 1976. The ban imposed on that date was of insufficient duration to warrant reversal since shortly after defendant raised an objection the ban was lifted (United States v Leighton, 386 F2d 822, supra).

Accordingly, the judgment of conviction should be affirmed.

Mollen, P. J., and Damiani, J., concur with Gibbons, J.; Martuscello, J., dissents and votes to affirm the judgment, with an opinion.

Judgment of the Supreme Court, Queens County, rendered August 12, 1976, reversed, on the law, and new trial ordered. The facts have been considered and are determined to have been established.

. The majority relies on People v McLucas (15 NY2d 167). In Musolino (supra, p 25, n), the court discussed the lack of vitality of McLucasin view of the holding in Patterson (39 NY2d 288, supra), and stated: "The one case which seems to broaden the exception [of considering unobjected errors] is People v McLucas (15 NY2d 167), where the trial court’s comment on the defendant’s failure to take the stand, even though not protested, was held ground for reversing the conviction. In Patterson the court suggests that McLucasmight be an eccentric decision (People v Patterson, supra, p 295).”

. If there were any, defendant’s appellate counsel would certainly be aware of it since he was also trial counsel.

Citation profile

How this case has been treated — in progress