People v. Childs

• Decision Date: 26 February 1998
• Parties: , 1998 N.Y. Slip Op. 2068 The PEOPLE of the State of New York, Respondent, v. Raymond CHILDS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 4

670 N.Y.S.2d 4

247 A.D.2d 319, 1998 N.Y. Slip Op. 2068

The PEOPLE of the State of New York, Respondent, v. Raymond CHILDS, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Feb. 26, 1998.

Peter D. Coddington, for Respondent.

Andrea G. Hirsch, for Defendant-Appellant.

Before ROSENBERGER, J.P., and ELLERIN, WILLIAMS, MAZZARELLI and ANDRIAS, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (Gerald Sheindlin, J.), rendered June 30, 1994, convicting defendant, after a jury trial, of murder in the second degree and robbery in the first degree, and sentencing him to concurrent terms of 25 years to life and 8 1/3 to 25 years, respectively, and judgment, same court and Justice, rendered June 30, 1994, convicting him, upon his plea of guilty, of promoting prison contraband in the first degree, and sentencing him to a term of 2 1/3 to 7 years, to be served concurrently with the sentence imposed on the conviction after trial, unanimously affirmed.

Defendant was found guilty of stabbing and robbing the 56-year-old male victim in a Bronx hotel frequented by prostitutes. Defendant admitted the homicide to the police, the prosecutors and the trial jury that convicted him. His defense of extreme emotional disturbance, based on the claim that the victim's attempt to have sex with him triggered his homicidal rage, was soundly rejected.

This appeal was previously before us. Defendant argued for reversal of his conviction on grounds that he was excluded from sidebars with four prospective jurors during voir dire, thereby violating his right to be present at a material stage of his trial. He also asserted that he was denied the right to counsel of his choosing when the court substituted his assigned counsel, over his objection, on the eve of trial. In our prior order, entered October 29, 1996 (see, People v. Childs, 232 A.D.2d 308, 648 N.Y.S.2d 918), we held the appeal in abeyance and remanded the matter for a reconstruction hearing. Specifically, we found the record insufficient to determine whether the defendant was present at the sidebars, and whether the court's excusal of certain prospective jurors "upon consent" was in fact an agreement that the juror could not withstand a challenge for cause. ¹

A reconstruction hearing was held on December 4, 1996 and January 29, 1997 before the Trial Justice. During the hearing, defense counsel withdrew her claim of error as to two of the four jurors. Therefore, we need only consider the evidence pertaining to the remaining two jurors, Rivera and Lalchandani. The question of whether the defendant was present at the sidebars regarding these two jurors has been resolved. All parties now concede that defendant was not present at either sidebar. ² However, the issue of whether the court's dismissal of Lalchandani and Rivera "on consent" was a consensual challenge for cause, or an agreement to excuse the juror for some other reason, remained to be determined.

The trial record indicates that prospective juror Rivera asked to approach the bench in response to the question of whether he could be a good judge of the facts. A bench conference between the court, both counsel and the juror ensued after which the juror was excused "on consent." At the reconstruction hearing, neither the court nor the attorneys could remember the precise reason juror Rivera was excused. As to juror Lalchandani, the trial record reveals that he spoke privately to the court and counsel at the bench in response to a question as to whether he or his family had been the victim of a crime. After the unrecorded discussion in the defendant's absence, the court excused Lalchandani "on consent" of both sides. At the reconstruction hearing, neither the attorneys nor the court could recall the specific reason for Lalchandani's excusal.

Between the two hearing dates, defendant's appellate counsel contacted Lalchandani by telephone and questioned him about his recollection of the bench conference. Lalchandani was wary about speaking to defense counsel, but informed her that the discussion at the bench involved a 1990 incident in which he had been mugged by four black youths and whether he could be a fair juror in light of this occurrence. Although hesitant, Lalchandani ultimately went to defense counsel's office and signed an affidavit stating that he answered "yes" or "I will definitely try," when asked if he could be a fair juror despite the mugging incident. The obvious purpose of the affidavit was to undermine the People's claim that Lalchandani was discharged for cause.

Lalchandani was called as a witness on the second day of the hearing, however, and he substantially recanted his affidavit. He admitted signing it, but otherwise denied having any recollection of the sidebar, the voir dire proceedings in this case or even the judge himself. He testified that he did not read the affidavit carefully before signing it, he did not understand many of the legal terms in it and he was preoccupied with his wife's health at the time since she had recently been hospitalized. He also stated that he was confusing his experience as a juror in this case in 1994 with the 5 or 6 other criminal cases he was questioned in during his subsequent jury service in 1996.

The hearing court found, based on its own recollection and Lalchandani's testimony that he always answered "I will try" when asked if he could be a fair juror, that Lalchandani answered in the same manner in this case in 1994. It ruled that, in light of the juror's equivocal responses regarding the mugging incident, and the juror's demeanor as he observed it at the reconstruction hearing, Lalchandani would not have survived a challenge for cause as a matter of law.

Ultimately, the reconstruction court found that both jurors were discharged for cause. The court explained that when it used the phrase "on consent," it was using a short-hand expression for "excused for cause on consent of both sides." The court further stated it had the "unvarying practice" of questioning jurors in the robing room in a defendant's presence only if the juror's comments at the sidebar would not sustain a challenge for cause. Thus, the court reasoned that if a juror was excused immediately after a bench conference, without any robing room discussion, the excusal necessarily was for cause. Defense counsel argued that the court's questioning of some jurors, but not others, in the robing room did not prove that those excused at the bench were definitely excused for cause. Defendant's trial counsel also stated at the reconstruction hearing that he might have consented to the excusal of a juror for reasons other than for cause.

In determining this appeal, the relevant legal principles bear repeating. "A sidebar interview of a prospective juror which concerns that juror's bias or hostility is a material stage of trial which defendants are entitled to attend" (People v. Maher, 89 N.Y.2d 318, 324, 653 N.Y.S.2d 79, 675 N.E.2d 833). However, even where a defendant has been erroneously excluded from a sidebar with a prospective juror, reversal is not required where the juror is ultimately excused for cause by the court (id. at 325, 653 N.Y.S.2d 79, 675 N.E.2d 833; People v. Roman, 88 N.Y.2d 18, 28, 643 N.Y.S.2d 10, 665 N.E.2d 1050). "[A]ny contribution that a defendant may make regarding excusal for cause is purely speculative" (People v. Maher, supra at 325, 653 N.Y.S.2d 79, 675 N.E.2d 833). The People may avoid a reversal on this ground, however, only where the necessary facts appear in the record demonstrating that defendant could not have meaningfully contributed to the determination because the juror was challenged for cause (id. at 325, 653 N.Y.S.2d 79, 675 N.E.2d 833).

Initially, the parties disagree in their post-reconstruction briefs as to who has the burden of proving whether the jurors questioned in defendant's absence could have materially contributed to the proceeding. The prosecution argues that there is a presumption of regularity in criminal proceedings, and that it is defendant's burden to overcome that presumption with substantial evidence to the contrary (see, People v. Harris, 61 N.Y.2d 9, 16, 471 N.Y.S.2d 61, 459 N.E.2d 170; People v. Moore, 220 A.D.2d 285, 286, 632 N.Y.S.2d 130, appeal after remand 227 A.D.2d 227, 642 N.Y.S.2d 288, lv. denied 88 N.Y.2d 990, 649 N.Y.S.2d 397, 672 N.E.2d 623). Conversely defendant asserts that it is the People's burden to prove by a preponderance of the evidence that the two jurors were excused for cause.

We agree with the defendant on this point. "A presumption of regularity exists only until contrary substantial evidence appears" (People v. Richetti, 302 N.Y. 290, 298, 97 N.E.2d 908). In this case, defendant's undisputed exclusion from two sidebar discussions with jurors regarding their ability to be fair sufficed to establish an irregularity in the proceedings, and the presumption dropped out of the case (id.). Once defendant's absence from a material stage of his trial is established, our sole concern is whether he could have meaningfully contributed to the proceeding (see, People v. Roman, supra at 28, 643 N.Y.S.2d 10, 665 N.E.2d 1050). There is no natural presumption in either direction.

Nonetheless, Maher makes clear that it is the People's burden of demonstrating that the record negates the possibility that the defendant could have meaningfully contributed to the sidebar conferences from which he was excluded (People v. Maher, supra at 325, 653 N.Y.S.2d 79, 675 N.E.2d 833). The weight of authority holds that in proceedings collateral to guilt or innocence, such as here, the standard of proof is a preponderance of the evidence (see, People v. Terry, 225 A.D.2d 1058, 639 N.Y.S.2d 215, lv. denied 88 N.Y.2d 886, 645 N.Y.S.2d 461, 668 N.E.2d 432; People v. Wigfall, 234 A.D.2d 73, 651 N.Y.S.2d 296, lv. denied 90 N.Y.2d 912, 663 N.Y.S.2d 524, 686 N.E.2d 236; see also, Jones v. Vacco, 126 F.3d...