Cohen v. Senkowski, Docket No. 00-2362.

• Decision Date: 13 May 2002
• Docket Number: Docket No. 00-2362.
• Citation: 290 F.3d 485
• Parties: Gary F. COHEN, Petitioner-Appellant, v. Daniel A. SENKOWSKI, Superintendent, Clinton Correctional Facility, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

290 F.3d 485

Gary F. COHEN, Petitioner-Appellant, v. Daniel A. SENKOWSKI, Superintendent, Clinton Correctional Facility, Respondent-Appellee.

Docket No. 00-2362.

United States Court of Appeals, Second Circuit.

Argued December 5, 2001.

Decided May 13, 2002.

Joel B. Rudin, New York, NY, for Petitioner.

Michael J. Miller, Assistant District Attorney of Suffolk County, Riverhead, N.Y. (James M. Catterson, Jr., District Attorney, of counsel), for Respondent-Appellee.

Before OAKES, NEWMAN and PARKER, Circuit Judges.

OAKES, Senior Circuit Judge.

Petitioner Gary Cohen was convicted of various sexual abuse charges after a trial in New York state court. Cohen subsequently petitioned for a writ of habeas corpus, alleging that his federal constitutional right to be present at trial had been violated when some portions of the voir dire were conducted without his participation. The United States District Court for the Eastern District of New York, Denis R. Hurley, Judge, denied the petition, finding that although Cohen had a constitutional right to be present when jurors were questioned about their exposure to pre-trial publicity, he had waived this right. We agree with the district court and accordingly affirm.

BACKGROUND

In December 1989, Cohen, a pediatrician, was arrested in Suffolk County, New York, on felony charges of sexual abuse of a patient. In response to the publicity generated by his arrest, seven other patients came forward with similar accounts of abuse. Cohen was later charged by the State with 75 counts of felony sexual offenses. Cohen's case attracted a substantial amount of publicity in the county media.

Jury selection for Cohen's trial in Suffolk County Court began in September 1991. At the outset, Judge Tisch announced in open court that he would initially question the prospective jurors individually in his chambers on, inter alia, their "prior knowledge about this case which has been reported in the media." Although Cohen's counsel participated in this questioning, Cohen himself was not present. Of the prospective jurors who were pre-screened in this manner, two who stated that they had prior knowledge of the case due to pretrial publicity were ultimately seated on the jury that convicted Cohen. Later in the jury selection process, Judge Tisch conducted sidebar questioning of three prospective jurors on bias connected to pretrial publicity and the nature of the charges. One of these jurors, who conceded possible bias, was empaneled as an alternate juror.

Judge Tisch also invited counsel on four occasions to exercise challenges for cause and peremptory challenges in his chambers. Cohen was not present for any of these exercises, but he did have an opportunity to consult with his attorney each time before counsel went into chambers. He was also present in court when the court announced which jurors were excused and which were selected.

On October 16, 1991, the jury convicted Cohen of 27 counts of sexual abuse. He received a 25- to 50-year sentence, which he continues to serve.

Cohen's first attack on his conviction was a motion to vacate the judgment pursuant to N.Y.Crim. Proc. Law § 440.10. He argued that his right to be present at trial under the New York and federal constitutions had been violated when prospective jurors were pre-screened for their prior knowledge of the case, sidebar voir dire was conducted, and juror challenges were exercised, all in his absence. Cohen further argued that he had not knowingly waived his right to be present. Judge Tisch denied the motion on procedural grounds, finding that all facts material to Cohen's claim were undisputed and in the record, and that therefore the claim could be raised on direct appeal. People v. Cohen, 158 Misc.2d 262, 598 N.Y.S.2d 439, 441 (1993).

Cohen proceeded to file a direct appeal in which he reiterated his claims of state and federal constitutional violations. The Appellate Division, Second Department, affirmed his conviction on state constitutional grounds, but did not directly address Cohen's federal claim that his right to be present at all material stages of his trial had been violated. See People v Cohen, 201 A.D.2d 494, 607 N.Y.S.2d 374 (1994). Cohen's applications for further state appeals were denied. People v. Cohen, 83 N.Y.2d 965, 616 N.Y.S.2d 18, 639 N.E.2d 758 (1994); People v. Cohen, 84 N.Y.2d 824, 617 N.Y.S.2d 144, 641 N.E.2d 165 (1994).

In April 1997, Cohen filed his petition for a writ of habeas corpus, arguing that his constitutional rights had been violated by his absence from the pre-screening of jurors, from sidebar voir dire, and from the exercise of cause and peremptory challenges. Cohen also contended that he did not know he had a constitutional right to be present at these proceedings, and therefore waiver of the right was not possible. The State responded that because Cohen was aware of the proceedings and had failed to object to them, he had impliedly waived the right to be present.

The district court denied Cohen's petition on May 31, 2000, holding that Cohen did have a federal constitutional right to be present at the pre-screening of the prospective jurors, but that he had waived that right. The court also found that Cohen did not have a federal constitutional right to be present at the sidebar conferences or at the exercise of juror challenges in chambers. In so holding, the court applied a de novo standard of review to Cohen's claims.

Leave to appeal was granted by this Court on April 3, 2001. The certificate of appealability directed the parties to address the following issues:

(1) whether there has been a state court adjudication of Appellant's federal claims, triggering the application of the standard of review set forth in 28 U.S.C. § 2254(d)(1); and (2) whether, under the applicable standard of review, Appellant is entitled to habeas relief on his claim that his right to be present at the material stages of his trial was violated because he was not present when the trial court prescreened prospective jurors, held sidebar discussions with jurors during voir dire, and conducted the exercise of juror challenges.

Cohen appeals on essentially these grounds, with the distinction that he has chosen not to pursue his sidebar conferences claim before this Court.

DISCUSSION

Addressing first the standard of review issue certified in this appeal, we recognize that whether the more deferential standard set forth in 28 U.S.C. § 2254 ("AEDPA") should apply raises a "difficult question," which would involve extensive analysis of the state court decisions in Cohen's case. See Washington v. Schriver, 255 F.3d 45, 53 (2d Cir.2001). However, we need not resolve this question because, as in Washington, "even reviewing the state court's resolution of [Cohen]'s federal constitutional claim de novo, . . . we hold that the district court properly denied the petitioner's application for a writ of habeas corpus." Id. at 55. In other words, we do not need to decide what level of deference to accord the state court rulings because "nothing turns on it here." Id.; see also Leka v. Portuondo, 257 F.3d 89, 97-98 (2d Cir.2001). We therefore decline to rule on the applicability of AEDPA's standard of review to the state court rulings in this case, and instead apply a de novo standard for the purposes of argument.

We review de novo the district court's denial of habeas relief. Leka, 257 F.3d at 98; Washington, 255 F.3d at 52.

Turning to the merits of Cohen's claims, we are confronted with a two-part inquiry. To determine whether Cohen's constitutional right to be present at all material stages of his trial was violated, we must examine first whether the court's pre-screening of jurors and the exercise of juror challenges were material stages that triggered the right to be present and then, if so, whether Cohen waived that right. We will address each question in turn.

I. The Right to Be Present

It is a well-settled principle of constitutional law that a criminal defendant has the right "to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings." Faretta v. California, 422 U.S. 806, 819 n. 15, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); accord Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987). It is also clear that "the impaneling of the jury is one such stage." Tankleff v. Senkowski, 135 F.3d 235, 246 (2d Cir.1998); accord Gomez v. United States, 490 U.S. 858, 873, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989); see also Fed.R.Crim.P. 43(a) (stating that the defendant shall be present "at every stage of the trial including the impaneling of the jury"). As the Supreme Court has recognized, however, the right to be present is not absolute: it is triggered only when the defendant's "presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge." Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 78 L.Ed. 674 (1934). Thus, there is no constitutional right to be present "when presence would be useless, or the benefit but a shadow." Id. at 106-07, 54 S.Ct. 330; see also United States v. Gagnon, 470 U.S. 522, 526-27, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (per curiam).

A. Pre-Screening

The district court held that Cohen had a right to be present at the pre-screening of jurors, basing its holding on our decisions in Tankleff, 135 F.3d at 246-47, and United States v. Gallego, 191 F.3d 156, 171-72 (2d Cir.1999). In Tankleff, the court and counsel questioned 150 prospective jurors in chambers about their ability to be impartial in light of the media coverage the case had received. 135 F.3d at 246-47. Tankleff was not present for the questioning, and argued on appeal that his right to be present was violated by this pre-screening procedure. Id. Although we did not explicitly state in our decision that Tankleff had such a right, we assumed it when we analyzed whether Tankleff had waived the right and...