People v. Antommarchi

• Decision Date: 27 October 1992
• Citation: 604 N.E.2d 95,590 N.Y.S.2d 33,80 N.Y.2d 247
• Parties: , 604 N.E.2d 95 The PEOPLE of the State of New York, Respondent, v. Domingo ANTOMMARCHI, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 33

590 N.Y.S.2d 33

80 N.Y.2d 247, 604 N.E.2d 95

The PEOPLE of the State of New York, Respondent, v. Domingo ANTOMMARCHI, Appellant.

Court of Appeals of New York.

Oct. 27, 1992.

[80 N.Y.2d 248] [604 N.E.2d 96] Kenneth Finkelman, and Philip L. Weinstein, New York City, for appellant.

[80 N.Y.2d 249] Robert M. Morgenthau, Dist. Atty., New York City (Paul Shechtman, David Joseph Mudd and Eleanor J. Ostrow, of counsel), for respondent.

OPINION OF THE COURT

SIMONS, Judge.

A jury has convicted defendant of criminal possession of a controlled substance in the third degree and the Appellate Division has affirmed. 176 A.D.2d 104, 573 N.Y.S.2d 285. He seeks reversal contending that (1) he was denied his constitutional and statutory right to be present during a material stage of the proceedings (see, U.S. Const. 6th, 14th Amends.; N.Y. Const., art. I, § 6; CPL 260.20) and (2) the court's instruction on reasonable doubt deprived him of due process of law under the Federal and State Constitutions (U.S. Const. 14th Amend.; N.Y. Const., art. I, § 6). We agree that defendant was denied the right to be present during a material stage of the trial and that a portion of the court's instruction was erroneous. We therefore reverse the order of the Appellate Division.

I

Defendant's first claim is based upon his absence during part of the proceedings when the jury was impaneled. He was present in the courtroom when the court began the voir dire by asking prospective jurors to respond orally to questions contained in a questionnaire and to follow-up questions posed by the court and counsel. Thereafter, several prospective jurors, at the court's invitation, went to the bench to speak about matters they did not wish to discuss publicly. The discussions were held on the record and in the presence of counsel, but without defendant. They addressed such matters as whether individual jurors would be able to remain objective despite experiences as crime victims or relationships with people who had been arrested, and whether they thought that defendant was guilty merely because he had been charged with participating in a drug sale. The court also asked at least one juror whether she could objectively assess the testimony of a police officer without being influenced by her friendships with other police officers.

As we have noted before, a defendant has a fundamental right to be present during any material stage of the trial (see, CPL 260.20; People v. Turaine, 78 N.Y.2d 871, 872, 573 N.Y.S.2d 64, 577 N.E.2d 55; People v. Mullen, 44 N.Y.2d 1, 4-5, 403 N.Y.S.2d 470, 374 N.E.2d 369) and questioning during the impaneling of the jury may constitute a material stage of the trial (see, People v. Sloan, 79 N.Y.2d 386, 583 N.Y.S.2d 176, 592 N.E.2d 784; People v. Velasco, 77 N.Y.2d 469, 568 N.Y.S.2d 721, 570 N.E.2d 1070). A court may conduct side-bar discussions with prospective jurors in a defendant's absence if the questions relate to juror qualifications such as physical impairments, family obligations and work commitments (see, People v. Velasco, 77 N.Y.2d, at 472-473, 568 N.Y.S.2d 721, 570 N.E.2d 1070, supra ). The court may not, however, explore prospective jurors' backgrounds and their ability to weigh the evidence objectively unless defendant is present. Defendants are entitled to hear questions intended to search out a prospective juror's bias, hostility or predisposition to believe or discredit the testimony of potential witnesses and the venire person's answers so that they have the opportunity to assess the juror's "facial expressions, demeanor and other subliminal responses" (see, People v. Sloan, 79 N.Y.2d, at 392, 583 N.Y.S.2d 176, 592 N.E.2d 784, supra ).

By questioning the prospective jurors' ability to weigh evidence objectively and to hear testimony impartially, the court violated defendant's right to be present during a material part of the trial. Moreover, because defendant had a fundamental right to be present, his failure to object to being excluded from the side-bar discussions is not fatal to his claim (see, People v. Dokes, 79 N.Y.2d 656, 662, 584 N.Y.S.2d 761, 595 N.E.2d 836).

II

Defendant also contends that the court's charge on reasonable doubt was erroneous. In its main charge, the court instructed the jury that:

"A reasonable doubt is a doubt based upon reason. It is a doubt for which a juror can give a reason if he or she is called upon to do so in the jury room. It must be a doubt based upon the evidence or the lack of evidence in this case."

The court delivered somewhat similar instructions during the jury's deliberations in an Allen charge (see, Allen v. United States, 164 U.S. 492, 501-502, 17 S.Ct. 154, 157, 41 L.Ed. 528):

"You swore that, if you have a reasonable doubt, I repeat, a reasonable doubt, on any relative point or material element or on the evidence or lack of it, and when one or more of your fellow jurors questioned you about it, you would be willing and able to give him what you believe is a fair, claim explanation for your position based upon the evidence or the lack of evidence in this particular case."

Defendant claims that these instructions deprived him of a fair trial because they unfairly advised the jury that a juror's doubt about guilt was not "reasonable" unless the juror was able to articulate the basis for it and because the instruction improperly shifted the burden of proof to defendant. We conclude the instruction in the main charge did not suffer from those faults but that the instruction in the Allen charge did. The difference is between a charge which essentially defines the degree of clarity and coherence of thought necessary for the jurors to conclude they harbor a reasonable doubt and one which imposes an affirmative obligation on the juror to specifically articulate the basis for such doubt.

Reasonable doubt, the standard by which criminal guilt or innocence must be determined, is a nebulous concept not susceptible of precise definition. Necessarily, trial courts must use general terms to explain to the jury the important yet subtle difference between a reasonable doubt and one which is based on conjecture or caprice. Nonetheless, the distinction is critical, for the...