People v. Davis

• Decision Date: 05 June 1995
• Citation: 216 A.D.2d 314,628 N.Y.S.2d 149
• Parties: The PEOPLE, etc., Respondent, v. Anthony DAVIS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 149

628 N.Y.S.2d 149

216 A.D.2d 314

The PEOPLE, etc., Respondent, v. Anthony DAVIS, Appellant.

Supreme Court, Appellate Division Second Department.

June 5, 1995.

Daniel L. Greenberg, and White & Case, New York City (Claire M. Donahue and Helen Feuer, of counsel), for appellant (one brief filed).

Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie, Victor Barall, and David O. Leiwant, of counsel), for respondent.

Before BRACKEN, J.P., and RITTER, JOY and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered December 23, 1992, convicting him of manslaughter in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the matter is remitted to the Supreme Court, Kings County, to hear and report on the question of whether the defendant was present during the trial court's questioning of two prospective jurors as indicated herein, and the appeal is held in abeyance in the interim. The Supreme Court, Kings County, is to file its report with all convenient speed.

The defendant contends, inter alia, that his absence during portions of the jury voir dire violated his fundamental right to be present at all material stages of trial, and therefore the judgment of conviction must be reversed, and a new trial ordered (see, People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95; People v. Daniels, 213 A.D.2d 419, 623 N.Y.S.2d 320).

Initially, we address the applicability of Antommarchi to the proceedings in question. In People v. Mitchell, 80 N.Y.2d 519, 529, 591 N.Y.S.2d 990, 606 N.E.2d 1381, the Court of Appeals concluded that Antommarchi is to be applied prospectively, and thus "applies only to those cases in which jury selection occurred after October 27, 1992, the date People v. Antommarchi was decided". Jury selection in this case commenced on October 27, 1992, and concluded on October 28, 1992; the challenged portions of the voir dire occurred on the later date. While Antommarchi therefore does not apply to the first day of jury selection, we perceive of no reason to accept the People's argument that, in the interest of internal consistency in this trial, Antommarchi should not apply to the second day of jury selection, which "occurred after October 27, 1992" (People v. Mitchell, supra, at 529, 591 N.Y.S.2d 990, 606 N.E.2d 1381). Accordingly, we conclude that the rule of law announced in Antommarchi is applicable to those challenged instances of the trial court's questioning of prospective jurors which occurred on October 28, 1992.

The first inquiry by the trial court challenged by the defendant arose when a prospective juror apologized to the court, stating that after reading the court's juror questionnaire, she would not be able to serve. The court then asked the prospective juror to approach the bench, and, after an off-the-record discussion, excused the juror. The record contains no indication regarding the substance of the court's discussion with this prospective juror, and is, accordingly, insufficient to permit appellate review (see, People v. Jupiter, 210 A.D.2d 431, 620 N.Y.S.2d 426; People v. Neal, 205 A.D.2d 711, 614 N.Y.S.2d 295). Nor do we believe it appropriate, under the circumstances of this case, to direct further proceedings in order to allow the defendant to inject new facts into the record regarding the substance of the side-bar discussion (see, People v. Neal, supra, at 712, 614 N.Y.S.2d 295; People v. Raventos, 199 A.D.2d 429, 430, 605 N.Y.S.2d 334).

The second instance of questioning occurred sometime after the luncheon recess was taken, when, in the court's words, the prospective juror "asked to come out", and then informed the...