People v. Maher

• Decision Date: 19 December 1996
• Citation: 675 N.E.2d 833,89 N.Y.2d 318,653 N.Y.S.2d 79
• Parties: , 675 N.E.2d 833 The PEOPLE of the State of New York, Appellant, v. Gary MAHER, Respondent. The PEOPLE of the State of New York, Appellant, v. Vernon RICKS, Respondent. The PEOPLE of the State of New York, Appellant, v. Anthony MACK, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 79

653 N.Y.S.2d 79

89 N.Y.2d 318, 675 N.E.2d 833

The PEOPLE of the State of New York, Appellant, v. Gary MAHER, Respondent.

The PEOPLE of the State of New York, Appellant, v. Vernon RICKS, Respondent.

The PEOPLE of the State of New York, Appellant, v. Anthony MACK, Respondent.

Court of Appeals of New York.

Dec. 19, 1996.

Richard A. Brown, District Attorney of Queens County, Kew Gardens (Robin A. Forshaw and John M. Castellano, of counsel), for appellants.

Daniel Hsiung, New York City, and Daniel L. Greenberg, for respondent in the first above-entitled action.

William B. Carney, New York City, and Daniel L. Greenberg, for respondent in the second above-entitled action.

Roger L. Stavis, New York City, and Steven R. Kartagener, for respondent in the third above-entitled action.

OPINION OF THE COURT

SMITH, Justice.

In each of these appeals the Appellate Division reversed the conviction of the defendant and remanded the proceedings for a new trial after finding that defendant had not been present at sidebar discussions of potential juror biases and prejudices or the potential juror's exposure to pretrial publicity. We affirm the order of the Appellate Division in each case.

People v. Maher

Defendant Maher was charged with committing two robberies. Early in the voir dire process, after some general questioning had already occurred, the Trial Judge told the assembled venire members,

"I should have said this at the outset. I tell it to you now. If the answer to any one of my questions is yes but you would like to explain privately all you have to do is indicate that and I will invite you to come up to the bench where you can explain to me here in the presence of the two attorneys. That applies to all of my questions and perhaps particularly to the next one" (emphasis added).

During the first round of jury selection, two prospective jurors asked to approach the Bench after the Trial Judge asked if there was "[a]ny reason you can think of why you cannot be [a] fair and impartial juror in this case." After an off the record discussion with each prospective juror, both candidates were excused. Another candidate asked to approach the Bench during questioning of prospective jurors about conflict they may have had with the law or experience they may have had with crime. The prospective juror returned to the panel after a sidebar conference. The court thereafter excused two persons and the questioning continued. After the prosecutor and defense counsel exercised their challenges, six jurors were sworn in.

During the second round of voir dire, a prospective juror asked to approach the Bench in response to a query by the court as to whether he could fairly judge the case despite his connection, through friends and relatives, to the police department. After an off the record discussion, the prospective juror returned to the panel. The Judge later reiterated the availability of private sidebar conferences, stating, "Were any one of you or any members of your immediate family ever had a conflict with the law. [sic ] If the answer is yes and you would like to speak privately I invite you to come up to the bench." At the conclusion of questioning, the prosecutor and defense counsel exercised six peremptory challenges each, and two additional jurors were sworn.

During the third round of voir dire, three unidentified members of the jury venire asked to approach the Bench for a sidebar conference. A male prospective juror wished to speak in private about his jury service five or six years ago in an armed robbery case. Two other prospective jurors asked for a sidebar in order to discuss conflict immediate family members may have had with the law. All three returned to the panel after the sidebars, and questioning resumed.

After the conclusion of general questioning, the court asked to see counsel and conducted a discussion off the record. Thereafter, the court excused three female members of the venire and continued questioning specific members of the panel. The questioning concluded, and four additional jurors and one alternate were sworn in after the defense exercised two peremptory challenges and the prosecutor exercised one.

After a jury trial, defendant was convicted of robbery in the first degree and sentenced to a 7-to-14-year term of imprisonment. Defendant appealed, and the Appellate Division reversed the conviction and remanded the case for a new trial on the ground that defendant had been improperly excluded from a material stage of his trial. The Appellate Division concluded from the record that several prospective jurors were questioned about possible biases and prejudices outside of defendant's presence. We affirm.

People v. Ricks and People v. Mack

Codefendants Ricks and Mack were tried jointly for various crimes arising out of an attempted robbery during which the victim was shot and killed. At the beginning of the voir dire process, the court told the assembled venire, "None of these questions are intended to embarrass you or inquire unnecessarily into your private lives, but if in the event that any of you feel that you prefer to answer a question only in the presence of myself and the attorneys, merely indicate that you wish to approach, and you will be brought before the bench" (emphasis added). The court repeated this statement two more times during the voir dire process.

At various times during voir dire, the court asked whether any of the prospective jurors recalled reading or hearing anything about the case. Eleven jurors responded affirmatively and were separately called to the Bench for off the record discussions. ¹ All of these jury candidates were excused after the sidebars concluded.

Two other times, the court asked prospective jurors and counsel to approach the Bench for a sidebar. ² No mention of either defendant was made during those times. The court also asked a sworn juror to approach the Bench "with counsel." That juror was excused from service following an off the record discussion.

After the conclusion of voir dire, defendants were tried jointly in front of a jury and each convicted of two counts of second degree murder, two counts of attempted robbery in the first degree, attempted robbery in the second degree and criminal possession of a weapon in the fourth degree. Defendants appealed and the Appellate Division reversed on the ground that the defendants had been improperly excluded from sidebar conferences regarding pretrial publicity....