Brewster, J.
The judgments appealed from stem from a Broome County Court Grand Jury investigation into the conduct of various members of the police department of the city of Binghamton and divers persons charged with various illegal gambling activities. It resulted in an indictment which occupies 341 pages of the record on appeal, and of wide scope as to the number and particulars of offenses charged and persons accused. The crimes charged were: two counts for the misdemeanor of conspiracy, in violation of subdivisions 1 and 6 of section 580 of the Penal Law, and one hundred counts for the felonies of bribery and as to an officer taking unlawful fees in violation of sections 372 and 1826 of the Penal Law, respectively. Therein eighteen persons, the defendants-appellants, and eight others were accused. The trial continued over a period of nearly twelve weeks. In the beginning the indictment was severed as to two defendants who later testified for the prosecution, and some thirty-six counts were dismissed as to all defendants on motion by the prosecution. At the close of the People’s evidence many more of the counts were dismissed for failure of proof, in some instances as to some defendants and in others, which related to fifty counts, as to all who were therein accused, with the result that the issues which were sent to the jury were those which arose from: (a) the two misdemeanor counts, the first of which accused thirteen defendants, including all defendants-appellants, and the other, five defendants, (b) felony counts Nos. 3 and 4 as charged against two of the defendants therein accused, (c) felony counts Nos. 5 to 12 inclusive, and Nos. 57 and 58 as charged against defendant-appellant O’Keefe, and (d) felony counts Nos. 59 and 60 as charged against O’Keefe and another. The action of [549]*549the jury was: (a) to acquit all of said defendants as to the second conspiracy count (Penal Law, § 580, suhd. 1), and three of them as to the other one (suhd. 6), as to which latter they found all of the defendants-appellants guilty, (b) to acquit said defendants accused by counts Nos. 3 and 4, (c) to convict defendant-appellant O’Keefe on counts Nos. 5 to 12 inclusive, and Nos. 57 and 58, and (d) to acquit said defendants accused by counts Nos. 59 and 60.
Of the several grounds upon which appellants seek a reversal we deem but two of them to here merit our consideration. These have to do with (1) the Trial Judge’s ex parte interview with a trial juror respecting her qualifications after she had been accépted a day or so previously but before the impaneling of the jury had been completed, and another ex parte communication he sent to them during a later stage of the trial and (2) the reception into evidence and use made of typewritten transcriptions of certain records of intercepted telephone conversations.
The record discloses that some few days after the trial began and when four trial jurors had been accepted the Judge called one of them, a Mrs. Whiting, juror No. 4, to his chambers and inquired of her somewhat at length concerning her qualifications in the light of various statements about her set forth in an affidavit or affidavits which had been furnished to him. While the actual and full contents of the affidavits have not been shown, the record discloses that the statements therein raised a grave question in the Judge’s mind as to her qualifications. It is conceded that the inquiry was wholly ex parte as regards the defendants although the Judge apprised defendants’ counsel of the incident after it had taken place and discussed the matter with them at some length, among other things, suggesting that they consent to excuse her. The juror Whiting continued as such and participated in the verdicts. The record further discloses that some days later, during the presentation of evidence, the jurors or some of them were anxious to learn whether the disk records of intercepted telephone conversations, received in evidence, would be available to them during their deliberations. The foreman of the jury took this inquiry to the Trial Judge in his chambers and received a negative reply. The subject matter of the inquiry did not otherwise arise during the trial. The information or instruction as thus communicated to the jury was without the knowledge or consent of the defendants or their counsel, as was the Judge’s questioning of juror Whiting.
[550]*550The impaneling of the trial jury is a part of the trial. (Maurer v. People, 43 N. Y. 1.) The ex parte inquiry into the qualifications of juror Whiting as disclosed by the record was wholly unauthorized. However well intentioned and inadvertently brought about it amounted to the conduct of a material part of the trial in the absence of the defendants and without their knowledge or consent, and" thus was beyond the pale of jurisdiction. (Code Crim. Pro. § 356; Maurer v. People, supra; People ex rel. Flaherty v. Neilsen, 22 Hun 1.)
The requirement of a defendant’s presence during his trial for a felony, whatever the cause of its ancient origin, has long been regarded as a necessary safeguard to his substantial and jealously protected right to a fair trial. Its absoluteness has only been relaxed in modern times in instances of rather minute departures but then only in the case of the allowance of a waiver by the accused when made “ with full knowledge of what has occurred and it is evident that the defendant has suffered no prejudice.” (People v. La Barbera, 274 N. Y. 339, 344; see, also, People v. Bragle, 88 N. Y. 585, 590.) The predicament here is not relieved by any sufficient showing of nonprejudice to the defendants or by any waiver by them or by the failure of a motion for a mistrial as to which it is idle to speculate as to the ruling had one been made. The argument that defendants’ non-action regarding the incident, or the trial tactics of their counsel, amounts to a waiver which may now be implied, and as such allowed, seems untenable. The record fails to show that the defendants themselves had knowledge of the occurrence of the incident and, of course, neither they nor their counsel could have known precisely what had transpired thereat or the effect of it on the mind of the juror who had been duly selected. It would seem to be going too far to now, by the doctrine of implication, force upon them the waiver of a transaction of which they did not have full knowledge.
The instruction or information imparted to the jury in answer to their inquiry communicated by the foreman, was also unauthorized. So far as the record discloses what took place regarding this matter seems trivial in its factual importance. But it has gravity in that it was a violation of the defendants ’ rights and prescribed trial practice which has been long established to protect those rights. This court recently reversed a judgment of conviction for a like error in People v. Hallock (267 App. Div. 1030). (See, also, People v. Migliori, 269 App. Div. 996.) It seems quite impossible to safely define or limit the extent to which a trial judge’s ex parte, and off the record [551]*551instructions to a jury regarding any matter germane to the case on trial before it, may be countenanced.
The difficulty of overlooking the incidents in question as harmless or technical errors (Code Grim. Pro. § 542) is that to do so would set a precedent for the tolerance of material parts of a trial in camera, and thus the avoidance of long-established rules for the conduct of criminal trials which are designed for the protection of the substantial rights of the accused.
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Brewster, J.
The judgments appealed from stem from a Broome County Court Grand Jury investigation into the conduct of various members of the police department of the city of Binghamton and divers persons charged with various illegal gambling activities. It resulted in an indictment which occupies 341 pages of the record on appeal, and of wide scope as to the number and particulars of offenses charged and persons accused. The crimes charged were: two counts for the misdemeanor of conspiracy, in violation of subdivisions 1 and 6 of section 580 of the Penal Law, and one hundred counts for the felonies of bribery and as to an officer taking unlawful fees in violation of sections 372 and 1826 of the Penal Law, respectively. Therein eighteen persons, the defendants-appellants, and eight others were accused. The trial continued over a period of nearly twelve weeks. In the beginning the indictment was severed as to two defendants who later testified for the prosecution, and some thirty-six counts were dismissed as to all defendants on motion by the prosecution. At the close of the People’s evidence many more of the counts were dismissed for failure of proof, in some instances as to some defendants and in others, which related to fifty counts, as to all who were therein accused, with the result that the issues which were sent to the jury were those which arose from: (a) the two misdemeanor counts, the first of which accused thirteen defendants, including all defendants-appellants, and the other, five defendants, (b) felony counts Nos. 3 and 4 as charged against two of the defendants therein accused, (c) felony counts Nos. 5 to 12 inclusive, and Nos. 57 and 58 as charged against defendant-appellant O’Keefe, and (d) felony counts Nos. 59 and 60 as charged against O’Keefe and another. The action of [549]*549the jury was: (a) to acquit all of said defendants as to the second conspiracy count (Penal Law, § 580, suhd. 1), and three of them as to the other one (suhd. 6), as to which latter they found all of the defendants-appellants guilty, (b) to acquit said defendants accused by counts Nos. 3 and 4, (c) to convict defendant-appellant O’Keefe on counts Nos. 5 to 12 inclusive, and Nos. 57 and 58, and (d) to acquit said defendants accused by counts Nos. 59 and 60.
Of the several grounds upon which appellants seek a reversal we deem but two of them to here merit our consideration. These have to do with (1) the Trial Judge’s ex parte interview with a trial juror respecting her qualifications after she had been accépted a day or so previously but before the impaneling of the jury had been completed, and another ex parte communication he sent to them during a later stage of the trial and (2) the reception into evidence and use made of typewritten transcriptions of certain records of intercepted telephone conversations.
The record discloses that some few days after the trial began and when four trial jurors had been accepted the Judge called one of them, a Mrs. Whiting, juror No. 4, to his chambers and inquired of her somewhat at length concerning her qualifications in the light of various statements about her set forth in an affidavit or affidavits which had been furnished to him. While the actual and full contents of the affidavits have not been shown, the record discloses that the statements therein raised a grave question in the Judge’s mind as to her qualifications. It is conceded that the inquiry was wholly ex parte as regards the defendants although the Judge apprised defendants’ counsel of the incident after it had taken place and discussed the matter with them at some length, among other things, suggesting that they consent to excuse her. The juror Whiting continued as such and participated in the verdicts. The record further discloses that some days later, during the presentation of evidence, the jurors or some of them were anxious to learn whether the disk records of intercepted telephone conversations, received in evidence, would be available to them during their deliberations. The foreman of the jury took this inquiry to the Trial Judge in his chambers and received a negative reply. The subject matter of the inquiry did not otherwise arise during the trial. The information or instruction as thus communicated to the jury was without the knowledge or consent of the defendants or their counsel, as was the Judge’s questioning of juror Whiting.
[550]*550The impaneling of the trial jury is a part of the trial. (Maurer v. People, 43 N. Y. 1.) The ex parte inquiry into the qualifications of juror Whiting as disclosed by the record was wholly unauthorized. However well intentioned and inadvertently brought about it amounted to the conduct of a material part of the trial in the absence of the defendants and without their knowledge or consent, and" thus was beyond the pale of jurisdiction. (Code Crim. Pro. § 356; Maurer v. People, supra; People ex rel. Flaherty v. Neilsen, 22 Hun 1.)
The requirement of a defendant’s presence during his trial for a felony, whatever the cause of its ancient origin, has long been regarded as a necessary safeguard to his substantial and jealously protected right to a fair trial. Its absoluteness has only been relaxed in modern times in instances of rather minute departures but then only in the case of the allowance of a waiver by the accused when made “ with full knowledge of what has occurred and it is evident that the defendant has suffered no prejudice.” (People v. La Barbera, 274 N. Y. 339, 344; see, also, People v. Bragle, 88 N. Y. 585, 590.) The predicament here is not relieved by any sufficient showing of nonprejudice to the defendants or by any waiver by them or by the failure of a motion for a mistrial as to which it is idle to speculate as to the ruling had one been made. The argument that defendants’ non-action regarding the incident, or the trial tactics of their counsel, amounts to a waiver which may now be implied, and as such allowed, seems untenable. The record fails to show that the defendants themselves had knowledge of the occurrence of the incident and, of course, neither they nor their counsel could have known precisely what had transpired thereat or the effect of it on the mind of the juror who had been duly selected. It would seem to be going too far to now, by the doctrine of implication, force upon them the waiver of a transaction of which they did not have full knowledge.
The instruction or information imparted to the jury in answer to their inquiry communicated by the foreman, was also unauthorized. So far as the record discloses what took place regarding this matter seems trivial in its factual importance. But it has gravity in that it was a violation of the defendants ’ rights and prescribed trial practice which has been long established to protect those rights. This court recently reversed a judgment of conviction for a like error in People v. Hallock (267 App. Div. 1030). (See, also, People v. Migliori, 269 App. Div. 996.) It seems quite impossible to safely define or limit the extent to which a trial judge’s ex parte, and off the record [551]*551instructions to a jury regarding any matter germane to the case on trial before it, may be countenanced.
The difficulty of overlooking the incidents in question as harmless or technical errors (Code Grim. Pro. § 542) is that to do so would set a precedent for the tolerance of material parts of a trial in camera, and thus the avoidance of long-established rules for the conduct of criminal trials which are designed for the protection of the substantial rights of the accused. Such being their basic purpose they are not to be endangered by the erosion of exceptions, even where their enforcement may seem harsh on the prosecution and to favor the guilty. The importance of preserving them in their historic integrity rises above the outcome of the given case. Their positive and material violation, in the absence of allowable waiver, clearly shown, in and of itself affects the substantial rights of the accused, is prejudicial, makes the trial unfair and calls for a reversal.
Much of the People’s evidence consisted of a great number of lawfully intercepted telephone conversations between divers of the defendants. These had been mechanically recorded on disks which were received in evidence and played to the jury. In many instances the records were so indistinct and jumbled in their reproduction that they were unintelligible except by being played back until the listener’s auditory senses would enable him to grasp an interpretation or understanding of the recorded talks. Typewritten transcriptions of these had been made by a stenographer from stenographic notes made as she listened to them and their playbacks. Copies of these transcriptions were furnished to the court and defendants’ counsel and, over the latter’s objection, to each member of the jury. No proof was given or offered as to the accuracy or reliability of the transcripts. Although offered and received in evidence over defendants’ objection and exception the court instructed the jury that they were not evidence or to be considered as evidence of the recorded conversation but were to be used by them as an aid to their understanding of them when reproduced, and, as the indistinct records were played to the jury they were so employed. We think this constituted error. (People v. Betts, 272 App. Div. 737, affd. 297 N. Y. 1000.) Even though technically not received or considered as real evidence the use made of them under the circumstances could have but caused them to function as evidence. If the jurors were unable to understand what was reproduced it is but natural that they, or at least some of them, relied upon the typewritten transcripts which so far as shown were some unknown person’s interpretation as typewritten from [552]*552stenographic notes. Although the indistinctly recorded conversations seem, largely cumulative we cannot say they were wholly so, and thus overlook this matter as mere technical error.
Amid the mass of proofs presented by the People we find ample to sustain the verdicts upon which the judgments appealed from were rendered. The trial was a protracted and difficult one. It was made so by a single indictment’s accusation of so many persons of so many instances of the commission of the various offenses charged. The difficulty was not lessened by the dismissal of the large number of counts because of the resultant necessity of segregation and application of the evidence to the issues finally submitted. For the errors heretofore assigned there should be a new trial.
The judgments should be reversed on the law and a new trial ordered.