dissents and votes to affirm the judgment of conviction, with the following memorandum: In my view the absence of the defendant from the proceedings whereby the jurors’ inquiry was received and the court’s answer framed and delivered does not, under these particular circumstances, warrant our reversal.
"Whether the error of the trial court in giving additional instructions to the jury in the absence of the accused is prejudicial in nature, and hence requires reversal of the conviction, may depend upon the circumstances of the case” (76 Am Jur 2d, Trial, § 1047, at 45). Due process requires a defendant’s presence at trial in situations where a fair and just hearing would be thwarted by his absence. "The privilege of presence must bear a reasonably substantial relation to a defendant’s opportunity to defend and is not constitutionally assured where his presence 'would be useless, or the benefit but a shadow’ ” (People v Wilson, 106 AD2d 146, 148, quoting from Snyder v Massachusetts, 291 US 97, 106-107).
The basic right of a person indicted for a felony to be personally present during his trial has been statutorily and judicially reinforced (CPL 260.20; Snyder v Massachusetts, 291 US 97; supra; People v Trendell, 61 NY2d 728). In the 1870 case of Maurer v People (43 NY 1, 3-5) the Court of Appeals made the following pronouncement: "The clause, 'during such trial,’ as used in the statute,* includes all proceedings had in impaneling the jury, the introduction of evidence, the summing up of counsel, and the charge of the court to the jury, receiving and recording the verdict. In all these proceedings, the legislature has deemed the presence of the accused essential to the attainment of justice and the protection of the innocent. The charge of the court to the jury includes all instructions of the court to the jury upon points of law, and *809all comments upon the evidence. Those familiar with trials for crime must be aware that the presence of the accused is quite as necessary and important to him during the latter as the former * * * Any further communication made by the court to the jury is a part of the charge, and will influence the verdict quite as much, if not more, than the instructions given before the jury retired from the bar in the first instance. It is equally essential that the accused should be present, and the statute requires such presence, during the former equally with the latter. It makes no difference that the communications consist only of answers given by the court to questions proposed by the jurors * * * Any instructions or information given by the court to jury, having a tendency to influence the verdict, is, within the statute, a proceeding upon the trial, and this is prohibited unless the accused be present. A trial, wholly or in part, conducted in his absence is illegal, and he has an absolute right to a reversal of the judgment, and to a new trial”.
In that case, the right to be present at every facet of the trial was held to be nonwaivable by either the accused or his counsel.
In an apparent retreat from the language of Maurer v People (supra), the Court of Appeals has more recently held that a literal construction of the mandate requiring the presence of a defendant at his trial is not demanded. Rather, "[cjommon sense dictates that substantial performance of its terms is sufficient” (People v Mullen, 44 NY2d 1, 5, citing People v Bragle, 88 NY 585, 590; People ex rel. Lupo v Fay, 13 NY2d 253, 256, cert denied 376 US 958). Thus, in People v Mullen (supra), the Court of Appeals held that the Trial Judge’s questioning of a juror in Chambers in the presence of both the prosecutor and defense counsel, after the entire jury had been impaneled and sworn, did not constitute a material part of the trial. Accordingly, the defendant’s absence during the court’s informal questioning of an already sworn-in juror did not have a substantial effect upon the defendant’s opportunity to defend (see, People v Mullen, supra).
It has been held that "there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction” (Chapman v California, 386 US 18, 22). The burden of proving constitutional error harmless is, of course, a heavy one, requiring that the State establish beyond a reasonable doubt that the error complained *810of did not contribute to the verdict (Chapman v California, supra, at p 24).
A number of jurisdictions have applied the harmless error analysis to errors involving communications between courts and jurors. The United States Court of Appeals for the Second Circuit has dismissed as harmless error an improper communication between the court and jury in response to a question put to the court by the jury after it had retired to deliberate, which was not made in open court and which was made without the knowledge and consent of the defendant or his counsel (see, Dodge v United States, 258 F 300, cert denied 250 US 660). The court therein reasoned that no possible harm resulted or could result from that communication inasmuch as it contained no information which was not contained in the original charge. Errors in giving instructions in the absence of a defendant have been deemed harmless beyond a reasonable doubt where the substance of the additional instructions was essentially the same as the original instructions to which the defendant did not object (see, State v McKee, 312 NW2d 907, 915 [Iowa]; People v Musser, 53 Mich App 683, 219 NW2d 781, 787), where defense counsel was present and had the opportunity to hear the proposed instructions (see, State v Lawrence, 123 Ariz 301, 599 P2d 754, 760), and where it was inconceivable that had the defendant been present, he would have had some legal knowledge superior to that of his counsel which would have resulted in a different or more advantageous objection than that which was actually made (see, State v Souza, — RI —, 425 A2d 893, 901, cert denied 454 US 840).
In the instant case, the defendant was in no way prejudiced by the trial court’s written response to the jury’s request for clarification. By stating only what had transpired on record, i.e., that the police officer had said that the defendant had opened the console, thus exposing the bullets to plain view, and the defendant had denied the same, the trial court was careful to avoid making any determinations or interpretations of facts, which are the rightful province of the jurors. It is difficult to conceive of anything that the defendant could possibly have added in aid of his defense had he been present in the courtroom at the time the court was framing its response.
Significantly, although defense counsel was present at the time, he neither objected to his client’s absence at a time when it could have been cured, nor moved for a mistrial on that ground. In light of these circumstances and the overwhelming evidence of the defendant’s guilt, the alleged error *811in responding to the jurors’ inquiry while the defendant was absent from the courtroom did not in any way contribute to the verdict and was harmless beyond a reasonable doubt.
Inasmuch as the defendant’s remaining contentions are without merit, the judgment of conviction should be affirmed.
The statutory reference is to 2 Rev Stats 759, § 13 (Edmond’s ed).