Fogel v. Lenox Hill Hospital

127 A.D.2d 548, 512 N.Y.S.2d 109, 1987 N.Y. App. Div. LEXIS 43018

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 1987
• Status: Published

Opinion

Judgment, Supreme Court, New York County (William McCooe, J.), entered March 26, 1986, which, inter alia, upon the jury’s verdict, granted defendant Nordic Interiors, Inc. judgment against the plaintiff on the issue of liability, unanimously affirmed, without costs.

At the outset, we note our disapproval of the practice employed by the Trial Justice in delivering his charge to the jury by means of a tape-recording device. There are various dangers inherent in such procedure, including that of jurors failing to accord the same level of attentiveness to a recording as to the Judge speaking first hand, and Trial Judges are cautioned against so proceeding in the future.

Notwithstanding our disapproval of the manner in which the charge was delivered, we affirm this judgment because we find that plaintiff was in no way prejudiced thereby under the circumstances of this case. The charge was substantively accurate and it appears from the record that the Judge was physically present in the courtroom while the tape recorder was playing his voice. The physical presence of the Judge throughout all proceedings relating to the trial is, of course, critical to insuring that the parties’ right to a fair trial is safeguarded. (See, People v Ahmed, 66 NY2d 307.)

We also note that since plaintiff did not object to the tape-recorded charge at the time it was given, the issue is not preserved for review. (CPLR 4017, 4110-b, 5501 [a] [3], [4].) Concur — Sullivan, J. P., Ross, Kassal, Ellerin and Wallach, JJ.