People v. Roman

• Decision Date: 02 April 1996
• Citation: 88 N.Y.2d 18,665 N.E.2d 1050,643 N.Y.S.2d 10
• Parties: , 665 N.E.2d 1050 The PEOPLE of the State of New York, Respondent, v. Julio ROMAN, Appellant. The PEOPLE of the State of New York, Appellant, v. Jesus FELICIANO, Respondent. The PEOPLE of the State of New York, Respondent, v. Doug STARKS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 10

643 N.Y.S.2d 10

88 N.Y.2d 18, 665 N.E.2d 1050

The PEOPLE of the State of New York, Respondent, v. Julio ROMAN, Appellant.

The PEOPLE of the State of New York, Appellant, v. Jesus FELICIANO, Respondent.

The PEOPLE of the State of New York, Respondent, v. Doug STARKS, Appellant.

Court of Appeals of New York.

April 2, 1996.

Renee A. McDonald, E. Joshua Rosenkranz and Mark Gimpel, New York City, for appellant in the first above-entitled action.

Robert M. Morgenthau, District Attorney of New York County, New York City (Tami J. Aisenson and Norman Barclay, of counsel), for respondent in the first above-entitled action.

Richard A. Brown, District Attorney of Queens County, Kew Gardens (Robin A. Forshaw and Steven J. Chananie, of counsel), for appellant in the second above-entitled action.

Joseph A. Zayas and Daniel L. Greenberg, New York City, for respondent in the second above-entitled action.

Laura Rossi-Ortiz, E. Joshua Rosenkranz and Richard M. Greenberg, New York City, for appellant in the third above-entitled action.

Robert M. Morgenthau, District Attorney of New York County, New York City (Morrie I. Kleinbart and Norman Barclay, of counsel), for respondent in the third above-entitled action.

OPINION OF THE COURT

LEVINE, Judge.

These appeals present heretofore unresolved issues in the application of this Court's doctrine concerning a criminal defendant's statutory (CPL 260.20) right to be present at sidebar conferences with prospective jurors concerning their possible inability to fairly and objectively weigh the evidence in the case. In all three cases, the venire members whose sidebar conferences were not attended by the defendants ultimately were not seated on the juries, having been excused for cause, by consent, or by peremptory challenge. Thus, these cases call upon us to determine whether, if at all, or under what circumstances, the fact that a prospective juror did not actually deliberate on defendant's guilt or innocence obviates any violation of the defendant's statutory right to be present at the sidebar with that juror.

People v Roman

Jury selection in defendant Roman's murder trial straddled the handing down of our decision in People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95 on October 27, 1992. The record indicates that the impact of Antommarchi on voir dire procedure was discussed by the trial court and counsel prior to the continuance of jury selection on October 28. On that date, during the court's preliminary instructions to the panel, an unidentified venire member asked to "come up", and an unrecorded conversation took place.

Jury selection continued into a third round on October 29. At the conclusion of the court's preliminary instructions to the panel, a prospective juror Wilson announced in open court that she had been a crime victim recently and was especially angered because the crime was committed in the presence of her child. A sidebar discussion ensued at which defendant's counsel but not defendant was present. Wilson was not seated as a juror.

At the conclusion of the trial, defendant Roman was convicted of murder. Prior to sentencing, he made a motion to vacate the conviction on the ground that the Antommarchi ruling had been violated. At sentencing, the trial court denied the motion. The court made findings that (1) during jury selection on October 28, no sidebar conference with a juror occurred; and (2) after the sidebar conference with prospective juror Wilson on October 29, she indicated that, having recently been a crime victim in the presence of her child, "she could not be fair", and she was discharged for cause upon consent of defendant and the People. Defendant's conviction was affirmed by a divided panel of the Appellate Division, First Department (217 A.D.2d 473, 630 N.Y.S.2d 58). The majority held that any violation of Antommarchi did not require reversal because no prospective juror interviewed outside defendant's presence was seated on his jury and, therefore, defendant was not prejudiced by exclusion from the sidebar. Defendant appeals, and we affirm.

People v Feliciano

The record of the voir dire in defendant Feliciano's robbery trial indicates that some 10 members of the venire were party to sidebar conferences concerning possible bias, at which the defendant was not present. None of those prospective jurors was seated on defendant's trial jury. One was excused on a peremptory challenge by the People, three were excused for cause upon consent and six merely excused "on consent". Applying People v. Antommarchi (supra ), the Appellate Division, Second Department, reversed Feliciano's robbery convictions (209 A.D.2d 634, 619 N.Y.S.2d 650). The Court rejected the People's contention that reversal was not required because none of the prospective jurors interviewed outside the defendant's presence sat on the jury, concluding that harmless error analysis was not appropriate under the circumstances. The People appeal, and we affirm.

People v Starks

Defendant Starks was tried for criminal sale of a controlled substance in the third degree. During jury voir dire, a prospective juror Samuels announced in open court that she had some problems in sitting on defendant's case because she thought she had seen him before. She was asked to approach the Bench and conferred with the trial court and counsel outside the defendant's presence. At the conclusion of that day of jury selection, as the court was about to excuse the panel, the court asked Samuels to remain "to put on the record the very brief conversation we had at the bench." The court then recited in the defendant's presence that Ms. Samuels thought she recognized him from her neighborhood or in connection with her church activities and said she could be fair and impartial if shown that there was no prior acquaintanceship with defendant. Ms. Samuels confirmed that this was an accurate description of her earlier sidebar conversation with the court and counsel. The court gave the prosecution and defense a further opportunity to ask questions, which both sides declined. The following day, defendant's attorney exercised a peremptory challenge to excuse Samuels "after conferring with my client [because] there is no way that I can live with [juror Samuels]."

During the trial, the court permitted the jury to submit questions to be propounded to witnesses by the court, some of which were asked and answered. The defense did not interpose any objection to that procedure. Starks was found guilty of criminal sale of cocaine by the jury.

On appeal from defendant Starks's conviction, the Appellate Division, First Department, rejected his Antommarchi argument regarding the sidebar conference with Ms. Samuels, holding that no prejudice occurred since Samuels was not seated on the jury. The Court also supported its holding by citing to the trial court's subsequent replication of the sidebar conference which the court conducted in the defendant's presence. Defendant appeals, and we affirm.

Analysis

Under our case law, the jury selection process is an ancillary proceeding--not a "core" proceeding critical to the outcome of a criminal trial (People v. Sprowal, 84 N.Y.2d 113, 117, 615 N.Y.S.2d 328, 638 N.E.2d 973). Therefore, a defendant's right to be present at a sidebar conference with a prospective juror exploring possible general or specific bias is governed exclusively by New York statutory law--CPL 260.20, which gives the defendant a right to be " 'personally present' during the trial of an indictment" (id.; see, People v. Mitchell, 80 N.Y.2d 519, 526-527, 591 N.Y.S.2d 990, 606 N.E.2d 1381).

The right to be present under CPL 260.20 extends to every ancillary proceeding that is a "material stage" of the trial (People v. Favor, 82 N.Y.2d 254, 265, 604 N.Y.S.2d 494, 624 N.E.2d 631; People v. Dokes, 79 N.Y.2d 656, 662, 584 N.Y.S.2d 761, 595 N.E.2d 836), that is, proceedings in which a defendant's presence "could have a substantial effect on [his or her] ability to defend against the charges" (People v. Sloan, 79 N.Y.2d 386, 392, 583 N.Y.S.2d 176, 592 N.E.2d 784; see, People v. Favor, 82 N.Y.2d, at 264, 604 N.Y.S.2d 494, 624 N.E.2d 631, supra [statutory right to be present extends to "any proceeding in which the defendant's presence is substantially and meaningfully related to the ability to defend"].

A defendant's presence is substantially and materially related to the ability to defend when the defendant "can potentially contribute to the proceeding" under scrutiny (People v. Sprowal, 84 N.Y.2d, at 118, 615 N.Y.S.2d 328, 638 N.E.2d 973, supra ); or when a defendant's "presence would have been useful in ensuring a more reliable determination" of the particular proceeding at issue (People v. Morales, 80 N.Y.2d 450, 454, 591 N.Y.S.2d 825, 606 N.E.2d 953). A defendant's presence at sidebar interviews of prospective jurors for bias or hostility during jury selection is generally required because of the potential input the defendant can give defense counsel in making discretionary choices during jury selection, based on impressions gained from seeing and hearing the juror's responses on voir dire (see, People v. Sloan, 79 N.Y.2d, at 392, 583 N.Y.S.2d 176, 592 N.E.2d 784, supra ).

Invocation of the statutory right to be present will be rejected, however, when the claim that a defendant's presence would have had an impact on the outcome of the trial is "speculative" (People v. Morales, 80 N.Y.2d, at 455, 591 N.Y.S.2d 825, 606 N.E.2d 953, supra), or the violation of the statute is "de minimis" (id., at 457, n. 2, 591 N.Y.S.2d 825, 606 N.E.2d 953). As most directly pertains to the instant appeals, we have also rejected claims under CPL 260.20 when, either because of the nature of the particular proceeding or its ultimate outcome, the defendant's presence was " 'useless, or the benefit but a shadow' " (People v. Morales, supra, at 454, 591 N.Y.S.2d 825, 606 N.E.2d 953, quoting Snyder v....