People v. Geddis, 136
| Decision Date | 14 June 2019 |
| Docket Number | 136,KA 17–01065 |
| Court | New York Supreme Court — Appellate Division |
| Parties | The PEOPLE of the State of New York, Respondent, v. Norman I. GEDDIS, Defendant–Appellant. |
173 A.D.3d 1724
102 N.Y.S.3d 846
The PEOPLE of the State of New York, Respondent,
v.
Norman I. GEDDIS, Defendant–Appellant.
136
KA 17–01065
Supreme Court, Appellate Division, Fourth Department, New York.
Entered: June 14, 2019
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BENJAMIN L. NELSON OF COUNSEL), FOR DEFENDANT–APPELLANT.
LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY, FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted on counts one, two and four of the indictment.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of assault in the second degree ( Penal Law § 120.05 [2 ] ), menacing in the second degree (§ 120.14[1] ), and unlawful imprisonment in the second degree (§ 135.05). By his own admission, defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence supporting his conviction of assault in the second degree and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
We agree with defendant, however, that his right to be present during questioning of prospective jurors regarding "bias, hostility, or predisposition to believe or discredit the testimony of potential witnesses" was violated ( People v. Antommarchi, 80 N.Y.2d 247, 250, 590 N.Y.S.2d 33, 604 N.E.2d 95 [1992], rearg. denied
81 N.Y.2d 759, 594 N.Y.S.2d 720, 610 N.E.2d 393 [1992] ). At the commencement of trial, defendant was informed of his right to be present at bench conferences. Specifically, the court advised defendant that he was "welcome and expected" to come to the bench at any time when the court had to discuss an issue with the attorneys. The court further advised defendant that if for some reason he did not wish to come up he should discuss that issue with his attorney. The court indicated that if he did not approach, the court would assume that defendant decided not to. In response to these instructions, defendant indicated that he understood. Subsequently, during a break in jury selection, a prospective juror stayed behind in the courtroom. Defendant was not present when this prospective juror advised the court and the attorneys that she was not sure if she fully responded to one of the earlier questions. The court asked defense counsel if he wanted his client present, and counsel
stated that he was "okay with it" and that defendant was in the bathroom. The prospective juror then advised the court and the attorneys that her son was a convicted felon. Shortly thereafter, defense counsel struck this juror with a peremptory challenge.
Initially, we conclude that the situation at issue here constituted a material stage of trial inasmuch as the prospective juror volunteered information about her son's status as a convicted felon. This information was...
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