People v. Cohen

• Decision Date: 13 April 1993
• Citation: 158 Misc.2d 262,598 N.Y.S.2d 439
• Parties: The PEOPLE of the State of New York v. Gary COHEN, Defendant.
• Court: New York County Court

Page 439

598 N.Y.S.2d 439

158 Misc.2d 262

The PEOPLE of the State of New York v. Gary COHEN, Defendant.

Suffolk County Court.

April 13, 1993.

[158 Misc.2d 263] James M. Catterson, Jr., Suffolk County Dist. Atty. (John Ribeiro, of counsel), Riverhead, for the people.

Richard A. Greenberg, New York City, for defendant.

ALFRED CLIFFORD TISCH, Judge.

At the conclusion of a trial that lasted almost three calendar weeks, a jury convicted the defendant of nine counts of Sodomy in the First Degree, seven counts of Sexual Abuse in the First Degree, two counts of Sexual Abuse in the Second Degree, eight counts of Sexual Abuse in the Third Degree and one count of Endangering the Welfare of a Child. The jury found that the defendant was guilty of twenty-seven of the sixty-three counts of child molestation charged in the indictment involving six boys who were between the ages of 9 and 17 when the alleged incidents occurred. The defendant has appealed his conviction and the matter is pending in the Appellate Division.

Since the defendant was a pediatrician, the case was notorious and highly publicized prior to the commencement of the trial. In an effort to weed out potential jurors who could not be fair and impartial as a result of being exposed to media generated or other information about the case or the defendant, the Court pre-screened the jurors in chambers in the presence of the defendant's attorney and the prosecutor; the defendant was not present during this process. The defendant was also not present in chambers when, at the conclusion of each round of jury selection, the prosecutor and his counsel advised the Court of the jurors they desired to excuse for cause and peremptorily. Thereafter, those jurors that the Court determined were unfit to serve for cause and those excused peremptorily were formally excused in open court in the presence of the defendant. Prior to entering chambers to discuss challenges, the defendant's attorneys were given an opportunity to consult the defendant (See, e.g., Trial Transcript, 9/27/91, at 283).

Claiming that he was prejudiced by the Court's failure to afford him his right to be present, the defendant now moves, pursuant to CPL 440.10(1)(h) for an order vacating the judgment entered against him. He contends that his federal constitutional rights were violated by the pre-screening procedure and the procedure engaged in by the Court to record the challenges to the jurors. The People oppose the motion. In making a determination of the motion, the Court has received and considered: the affidavit of the defendant; the affidavit of Robert Sale, Esq.; the memorandum of law and reply memorandum of law by Richard A. Greenberg, Esq. in support of the motion; the affidavit and memorandum of law of John Ribeiro, Esq., in opposition to the motion; and a transcript of the pre-screening and jury selection proceedings submitted by both sides for the Court's consideration.

The defendant contends that recent decisions of the Court of Appeals require this Court to now vacate the judgments entered against him because the Court committed reversible error when it engaged in a process of pre-screening jurors in chambers out of the defendant's presence. Even though the critical Court of Appeals decision, People v. Sloan, 79 N.Y.2d 386, 583 N.Y.S.2d 176, 592 N.E.2d 784, post-dated the trial of this matter by more than six months, his position is that the Sloan rule is retroactive to cases pending on appeal because the decision was premised upon an interpretation of the rights afforded a criminal defendant by the 14th Amendment due process clause of the Constitution of the United States. This is the first time a court in this state has been asked to consider whether the holding in Sloan should be applied retroactively to cases pending on appeal. The Court disagrees with the defendant's contentions and holds that the Court of Appeals pronounced what the law of the State of New York requires regarding the defendant's presence at trial in reaching its decision in Sloan. The Court further holds, pursuant to People v. Mitchell, 80 N.Y.2d 519, 591 N.Y.S.2d 990, 606 N.E.2d 1381, that New York retroactivity principles apply and that the Sloan rule should be applied only prospectively.

The Court also disagrees with the defendant's contention that the defendant's constitutional right to be present was violated by the procedure the Court engaged in to effectuate challenges to prospective jurors.

Preliminarily, the Court has also determined that this motion must be denied because sufficient facts appear on the record of the proceedings to permit adequate review of the grounds raised on appeal (see, CPL 440.10[2][b]. However, recognizing that this threshold determination will likely be appealed, the Court has considered the merits of the motion now to expedite the process of appellate review of the merits in the event that the Appellate Division disagrees with this determination.

The analyses of the Court underlying the determinations made herein follow:

THE THRESHOLD QUESTION

The only critical facts that the defendant has submitted which he contends augment the record with respect to the issues raised upon this motion are that the defendant was not present when the pre-screening of jurors with respect to pre-trial publicity occurred or when the attorneys advised the Court, in chambers, of their respective challenges for cause and peremptory challenges and that he never waived his right to be present (2/2/93 affidavit of defendant and 1/8/93 affidavit of Robert Sale, Esq). Significantly, the People have nowhere disputed these statements and implicitly concede that the defendant was not present during the pre-screening process (3/1/93 memorandum of law by John Ribeiro, Esq., p. 1). Moreover, the record discloses that the defendant was not present during the pre-screening process ("The situation is, one at a time you will be brought back to speak to the Court and counsel in chambers." [Trial Transcript, 1/25/91, at 9] or during the in-chambers proceedings concerning juror challenges ("As soon as counsel had an opportunity to consider their thoughts, I'll meet them in chambers." [Trial Transcript, 1/27/91, at 283]. Just as significant is the fact that the record "does not reflect defendant's presence in chambers at any time during the 'pre-screening' proceedings" (Defendant's memorandum of law, p. 5) or "during the challenges" (Defendant's memorandum of law, p. 12). Under these circumstances, sufficient facts appear on the record regarding the issue raised upon the motion to permit adequate review thereof upon appeal. The defendant's motion must be denied for this reason alone (See, CPL 440.10[2][b].

CHALLENGING THE JURORS

The procedure engaged in by the Court to effectuate the attorneys' challenges for cause and peremptory challenges after each round of the formal jury selection is substantially the same as the procedure the Court of Appeals approved of in People v. Velasco (The defendant was absent from "the robing room discussion in which the attorneys advanced the legal basis for their challenges for cause and identified their peremptory challenges, later formally effected in open court.") (77 N.Y.2d 469, 473, 568 N.Y.S.2d 721, 570 N.E.2d 1070) and People v. Dokes (The defendant was absent from "the recording of the peremptory and for-cause challenges" in chambers.) (173 A.D.2d 724, 570 N.Y.S.2d 357, reversed on other grounds, 79 N.Y.2d 656, 584 N.Y.S.2d 761, 595 N.E.2d 836). "The in-chambers discussion was a mere preliminary advisement of the Court of challenges later effectuated in open court in the presence of defendant and thus did not constitute a material part of the trial" (People v. Velasco, supra, 77 N.Y.2d at 473, 568 N.Y.S.2d 721, 570 N.E.2d 1070). The defendant's motion to vacate the judgment entered against him on this ground is, therefore, denied.

DEFENDANT'S RIGHT TO BE PRESENT DURING COURT PROCEEDINGS

The defendant's right to be present during court proceedings arises from two complementary yet distinct sources of law. The Constitution of the United States affords the defendant this right in certain circumstances. At the same time, State law (including the State constitution) mandates the presence of the defendant during certain court proceedings (see, People v. Dokes, 79 N.Y.2d 656, 659, 584 N.Y.S.2d 761, 595 N.E.2d 836). ¹ Many of the decisions relating to the defendant's right to be present, including People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95, refer to these distinct sources of law, but reach a conclusion that the defendant has a right to be present at some stage of a court proceeding without explicitly stating that the conclusion is premised upon a specific source of law. Consequently, the Court of Appeals in People v. Mitchell was called upon to determine whether the Antommarchi decision was based upon their interpretation of what State law mandated or what the Constitution of the United States required (80 N.Y.2d 519, 591 N.Y.S.2d 990, 606 N.E.2d 1381, supra ).

This Court is called upon, in a case of first impression, to make a similar determination regarding the Sloan decision. In doing so the Court gives heed to the statement of Mr. Justice Cardozo in Snyder v. Massachusetts, which is pertinent on any occasion when a court must determine the scope of a superior court's precedent. Cardozo said:

A fertile source of perversion in constitutional theory is the tyranny of labels. Out of the vague precepts of the Fourteenth Amendment a court frames a rule which is general in form, though it has been wrought under the pressure of particular situations. Forthwith another situation is placed under the rule because it is fitted to the words, though related faintly, if at all, to the reasons that brought the rule into existence.

(291 U.S. 97, 114, 54 S.Ct. 330, 335.)

According to the defendant, the phrasing used by the Court of Appeals in both...