dissenting:
The original majority opinion herein is reported at 117 F.3d 696. My colleagues now submit a revised opinion, two pages of which deal with the issues discussed in the original opinion. I adhere firmly to my original dissent, reported in 117 F.3d at 716-21, but add this brief response to the arguments that my colleagues now advance.
At the outset, I disagree with the statement in my colleagues’ revised opinion that the prosecutor’s reference to the defendant’s presence in court throughout the trial “was not a factual argument based on the testimony in this particular case but a generic argument that a defendant’s credibility is less than that of prosecution witnesses solely because he attended the entire trial while they were present only during their own testimony.” In making this argument, the prosecutor was not disinterestedly discussing “a” defendant. She was challenging the testimony given by “the” defendant in the instant case. She concluded her remarks concerning his testimony when she said:
He’s a smart man. I never said he was stupid ... He used everything to his advantage.
The issue in the case was credibility, and conscientious counsel could not avoid discuss*101ing it in their summations. For example, Agard’s counsel argued to the jury that the prosecution witnesses had fabricated the allegations against Agard and that his testimony was more credible than theirs. See 117 F.3d at 706 n. 3. The prosecutor’s statements in response were not irrelevantly generic in nature. They were addressed squarely to Agard and his counsel’s open-the-door, invite-a-response argument of “fabrication.” They did not prejudiciously violate Agard’s constitutional rights. See United States v. Tocco, 135 F.3d 116, 130 (2d Cir.1998); United States v. Praetorius, 622 F.2d 1054, 1061 (2d Cir.1979), cert. denied, 449 U.S. 860, 101 S.Ct. 162, 66 L.Ed.2d 76 (1980); People v. Anthony, 24 N.Y.2d 696, 703-04, 301 N.Y.S.2d 961, 249 N.E.2d 747 (1969).
Unlike my colleagues, I find little similarity between the instant case and Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), which forbids comments about a defendant’s failure to testify. The Griffin Court, citing Murphy v. Waterfront Comm’n, 378 U.S. 52, 55, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), described such a comment as “a remnant of the ‘inquisitorial system of criminal justice,’ ... which the Fifth Amendment outlaws.” 380 U.S. 609, 614, 85 S.Ct. 1229. The Court continued, “It is a penalty imposed by courts for exercising a constitutional privilege.” Id. However, unlike the defendant in Griffin, Agard’s presence in the courtroom was not simply the exercise of a constitutional privilege — it was compliance with a duty that “is one of the earliest established in the criminal law,” i.e., the duty of a defendant to be present for trial. See Kivette v. United States, 230 F.2d 749, 755 (5th Cir.1956), cert. denied, 355 U.S. 935, 78 S.Ct. 419, 2 L.Ed.2d 418 (1958). In short, while a defendant has the right to be present during his trial, he has no right to be absent. This is the rule in both the New York and federal courts.
Sections 260.20 and 340.50 of New York’s Criminal Procedure Law provide, with certain exceptions not applicable here, that a defendant must be personally present during the trial of an indictment. The New York courts have recognized these provisions as expressions of a “strong social policy in favor of requiring the presence of the defendant,” People v. Anderson, 16 N.Y.2d 282, 288, 266 N.Y.S.2d 110, 213 N.E.2d 445 (1965), and have held that “[a] defendant must obtain the permission of the Trial Judge to be absent from a trial,” People v. Winship, 309 N.Y. 311, 314, 130 N.E.2d 634 (1955). In the early case of People v. Gardner, 144 N.Y. 119, 127, 38 N.E. 1003 (1894), the Court said that the defendant “was bound to be in court and in the presence of the jury, the recorder and the witnesses who might be there. The recorder, the jurors and the witnesses had the right to see him, and he had the right to see them.” See also People ex rel Lupo v. Fay, 13 N.Y.2d 253, 257, 246 N.Y.S.2d 399, 196 N.E.2d 56 (1963) (defendant’s presence is indispensable); People v. Rheubottom, 131 A.D.2d 790, 517 N.Y.S.2d 78 (1987) (mem.) leave to appeal denied, 70 N.Y.2d 716, 519 N.Y.S.2d 1052, 513 N.E.2d 1320 (1987) (no error in denying defendant’s motion to remain outside courtroom); People v. Masselli, 134 Misc.2d 414, 415, 511 N.Y.S.2d 499 (N.Y.Sup.Ct.1987) (absent effective waiver, defendant’s presence at felony trial is indispensable).
Although state, rather than federal law is at issue herein, Fed.R.Crim.P. 43, is very similar to the above-quoted provisions of New York’s Criminal Procedure Law and is interpreted in much the same manner. See In re United States, 784 F.2d 1062, 1063 (11th Cir.1986); United States v. Cannatella, 597 F.2d 27 (2d Cir.1979) (per curiam); United States v. Moore, 466 F.2d 547, 548 (3d Cir.1972) (per curiam), cert. denied, 409 U.S. 1111, 93 S.Ct. 920, 34 L.Ed.2d 692 (1973); United States v. Fitzpatrick, 437 F.2d 19, 27 (2d Cir.1970).
Where, as here, a defendant is required by law to be present in court while all the witnesses testify, I can discern no prejudicial constitutional error in a prosecutor’s reference to the so-called “benefits” inherent in such requirement. Such “benefits,” which are not of the defendant’s doing, must be obvious to every juror with a modicum of common sense. The comment in question herein deals with the issue of a defendant allegedly coloring his testimony to conform with what has gone before. As former Jus*102tice Brennan said when discussing this issue in Brooks v. Tennessee, 406 U.S. 605, 611, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972), “our adversary system reposes judgment of the credibility of all witnesses in the jury.” Nothing that the prosecutor said in the instant case concerning Agard’s obvious presence in the courtroom prevented the jury from properly exercising this judgment.
With all due respect to my learned colleagues, I must adhere to my dissent.