People v. Dokes

• Decision Date: 11 June 1992
• Parties: , 595 N.E.2d 836 The PEOPLE of the State of New York, Respondent, v. Roger DOKES, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 761

584 N.Y.S.2d 761

79 N.Y.2d 656, 595 N.E.2d 836

The PEOPLE of the State of New York, Respondent, v. Roger DOKES, Appellant.

Court of Appeals of New York.

June 11, 1992.

[79 N.Y.2d 657] [595 N.E.2d 837] Susan H. Salomon and Philip L. Weinstein, New York City, for appellant.

[79 N.Y.2d 658] Richard A. Brown, Dist. Atty. (David L. Heller, Barbara D. Underwood and Robin A. Forshaw, Brooklyn, of counsel), for respondent.

OPINION OF THE COURT

WACHTLER, Chief Judge.

Following a jury trial, defendant was convicted of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and unlawful possession of marihuana. The charges and resulting convictions stem from a routine "buy and bust" operation in the Borough of Queens.

Defendant's primary contention on this appeal is that his right to be present at all material stages of the trial was violated when the trial court conducted a Sandoval hearing (see, People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) in his absence. We agree and consequently reverse the order of the Appellate Division, 173 A.D.2d 724, 570 N.Y.S.2d 357, affirming the judgment of conviction.

The only facts relevant to this appeal are those concerning the hearing on defendant's Sandoval motion to preclude the People from cross-examining him about prior crimes. It is undisputed that defendant was not present during a conference in the Judge's robing room, held immediately prior to jury selection for this trial, during which the court heard counsels' arguments on this motion. The People contend, however, that defendant was present at a Sandoval hearing conducted in connection with a prior effort to try defendant on these charges ¹ and that the later hearing was merely a reargument of the court's prior Sandoval ruling. Thus the People argue that, even assuming that defendant's presence is required at a Sandoval hearing, his presence at the initial hearing effectively satisfied this requirement for the later proceeding. Defendant, on the other hand, contends that he was not present at the earlier hearing.

The record is equivocal with respect to defendant's presence at the earlier hearing, but this factual dispute is inconsequential for our purposes. The record of the second hearing, from which defendant was absent, indicates that the motion was considered de novo. The benefits that defendant may have obtained by his presence at the first hearing, if he was present then, did not carry over to the second hearing. In these circumstances, we do not consider it material that defendant may have been present at an earlier hearing on his motion.

A defendant's presence at trial is required not only by the Confrontation and Due Process Clauses of the Federal and State Constitutions (see, U.S. Const. 6th, 14th Amends.; N.Y. Const., art. I, § 6), but also by CPL 260.20, which provides that "[a] defendant must be personally present during the trial of an indictment". The statutory right, we have held, extends to "the impaneling of the jury, the introduction of evidence, the summations of counsel, and the court's charge to the jury" (People v. Velasco, 77 N.Y.2d 469, 472, 568 N.Y.S.2d 721, 570 N.E.2d 1070; see, People v. Sloan, 79 N.Y.2d 386, 583 N.Y.S.2d 176, 592 N.E.2d 784; People v. Mullen, 44 N.Y.2d 1, 4, 403 N.Y.S.2d 470, 374 N.E.2d 369). In addition, due process requires that a defendant be present "whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge" (Snyder v. Massachusetts, 291 U.S. 97, 105-106, 54 S.Ct. 330, 332, 78 L.Ed. 674; see, People v. Mullen, supra, 44 N.Y.2d at 4-5, 403 N.Y.S.2d 470, 374 N.E.2d 369; People v. Ciaccio, 47 N.Y.2d 431, 436, 418 N.Y.S.2d 371, 391 N.E.2d 1347).

Applying these standards, we have held that a defendant has a right to be present during a pretrial suppression hearing during which witnesses are examined and cross-examined, noting that the "defendant alone may be able to inform his attorney of inconsistencies, errors and falsities in the testimony of the officers or other witnesses" (People v. Anderson, 16 N.Y.2d 282, 288, 266 N.Y.S.2d 110, 213 N.E.2d 445). Similarly, we held in People v. Turaine, 78 N.Y.2d 871, 573 N.Y.S.2d 64, 577 N.E.2d 55 that the defendant had a right to be present at a hearing to determine the admissibility of a witness' proposed testimony that the defendant had threatened the witness to prevent him from testifying. We noted (at 872, 573 N.Y.S.2d 64, 577 N.E.2d 55) that defendant was entitled "to confront the witness against him at that hearing and also to be present so that he could advise counsel of any errors or falsities in the witness' testimony which could have an impact on guilt or innocence."

By way of contrast, we have held that the defendant's presence was not required at a precharge conference concerning such matters as the scheduling of the rest of the trial and the concluding instructions to be given to the jury by the court (see, People v. Velasco, supra ). The basis for our conclusion in that case was that "[t]he conference involved only questions of law or procedure" (id., 77 N.Y.2d at 472, 568 N.Y.S.2d 721, 570 N.E.2d 1070; see also, People v. Rodriguez, 76 N.Y.2d 918, 563 N.Y.S.2d 48, 564 N.E.2d 658 [defendant not entitled to be present during discussion between court and defense counsel, outside the jury's presence, concerning sufficiency of read-back of testimony]. ²

In determining whether a defendant has a right to be present during a particular proceeding, a key factor is whether the proceeding involved factual matters about which defendant might have peculiar knowledge that would be useful in advancing the defendant's or countering the People's position. If so, as in Anderson (supra) and Turaine (supra), then the defendant has a right to be present. The Sandoval hearing in this case was such a proceeding.

The purpose of a Sandoval hearing is to determine the extent to which the defendant, if he testifies, will be subject to impeachment by cross-examination about prior bad acts (People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 supra ). Typically, the focus of such a hearing is a report on the defendant's criminal history compiled by the State Division of Criminal Justice Services (DCJS) which contains information about any prior arrests and the disposition of those charges. In the usual case, the prosecution will seek permission to cross-examine the defendant about most, if not all of the charges reflected in that report. The People may also seek to inquire about prior bad acts of which they are aware that have not been the subject of formal charges. ³

Based on a number of factors--including the nature of the conduct, its similarity to the pending charges, the extent to which it bears on the defendant's credibility, the age of the defendant at the time, the disposition of the charges and many other factors--the court must determine whether the probative value of the evidence concerning the defendant's prior bad acts is outweighed by its prejudicial impact. In its discretion, the court may allow the People to cross-examine the defendant about all prior bad acts, about some of them or about none of them; it may allow the People to inquire about the facts underlying the charges or it may limit the People to asking whether the defendant was convicted of a particular crime or, even more generally, whether the defendant was convicted of a felony or misdemeanor, as the case may be.

Given the number of factors that are relevant to the court's...