Conford, Foley and Leonard. The opinion of the court was delivered by Foley, J.A.D.
Defendant appeals from the denial of his petition for post-conviction relief.
The principal ground of appeal is that defendant was deprived of his constitutional right to a fair trial because, during a recess, he was seen in handcuffs by members of the jury. This point could have been raised on direct appeal and ordinarily it would not be cognizable upon an application for post-conviction relief. R.R. 3:10A. However since we dealt with a cognate problem in State v. Roberts, 86 N.J. Super. 159 (App. Div. 1965), we think a determination on the merits may be informative.
Viewing the facts in a light most favorable to defendant, the following may be said to have occurred. At the conclusion of the entire evidence and just prior to the summations, court was adjourned for the luncheon recess. Shortly before trial was resumed defendant, in handcuffs, was taken from the prison floor to the courtroom. This necessitated his appearance in the public corridors. As he, accompanied by a guard, approached the courtroom, defendant noticed that jurors sitting in the case were present, apparently awaiting the resumption
of the proceedings. He immediately complained that he did not think that the jurors should see him in handcuffs and requested that the incident be reported to the trial judge. That was done.
When the judge took the bench defendant's attorney stated for the record that his client had brought to his attention that he had been "brought down in handcuffs and the jurors were outside of the door" and that defendant feels that "this view of him in handcuffs casts an extremely dubious light on him and reflects very adversely on him * * * therefore he strongly objects to being taken before the jury." Pertinent portions of the ensuing colloquy follow:
"THE COURT: What do you want me to do about it?
MR. ITZIKMAN: I think the very least, your Honor, is something in the charge. I don't think that will have sufficient effect, but at least my objection is noted.
THE COURT: I will tell the jury that this man has been confined and that it is not to play any part in their deliberations, the fact he has been confined. I will say in connection with this or some other problem whatever you wish.
MR. ITZIKMAN: I will leave that to the discretion of the Court.
THE COURT: Do you want a mistrial?
MR. ITZIKMAN: May I have a ...