People v. Roman

• Decision Date: 20 July 1995
• Citation: 630 N.Y.S.2d 58,217 A.D.2d 473
• Parties: The PEOPLE of the State of New York, Respondent, v. Julio ROMAN, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 58

630 N.Y.S.2d 58

217 A.D.2d 473

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

Supreme Court, Appellate Division,

First Department.

July 20, 1995.

T. Aisenson, for respondent.

R.E. McDonald, for defendant-appellant.

Before MURPHY, P.J., and ROSENBERGER, NARDELLI and WILLIAMS, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Edward Sheridan, J.), rendered February 9, 1993, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to 20 years to life, affirmed.

Defendant claims that his right to be present was violated when the court conducted a sidebar conference with a prospective juror in his absence on October 28th. While the dissent also asserts that "[t]he record does not indicate the defendant's presence at the aforementioned sidebar conducted on October 28th", it is the burden of the defendant to provide an adequate record with respect to his absence from sidebar conferences (People v. Arhin, 203 A.D.2d 62, 62-63, 609 N.Y.S.2d 604, lv. denied 83 N.Y.2d 908, 614 N.Y.S.2d 390, 637 N.E.2d 281). Consequently, this claim is unreviewable, since the record before us is inadequate to show the substance of the discussion or even the identity of the juror.

The record also discloses that defendant was not denied his right to be present where a second juror stated in open court that she had been recently victimized in the presence of her child. The defendant was present when the juror made this statement. During the subsequent off-the-record discussion with defendant's counsel, she stated that she could not be fair. She was ultimately challenged for cause with defendant's consent. Defendant never challenged his attorney's confirmation that the retained jurors were acceptable to the defense (People v. Shabani, 203 A.D.2d 142, 611 N.Y.S.2d 2, lv. denied 84 N.Y.2d 832, 617 N.Y.S.2d 152, 641 N.E.2d 173). While the dissent would impose a rigid, mechanistic rule requiring automatic reversal under these circumstances, the Court of Appeals and this Court have imposed no such requirement. People v. Ahmed, 66 N.Y.2d 307, 496 N.Y.S.2d 984, 487 N.E.2d 894, cited by the dissent, involved the absence of the trial judge and the delegation of some of his duties to his law secretary during a part of the jury's deliberations. In People v. Mitchell, 80 N.Y.2d 519, 591 N.Y.S.2d 990, 606 N.E.2d 1381, the holding dealt only with the retroactive application of People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95, and the Court of Appeals noted that in Antommarchi, "we permitted defendant to successfully raise the question on appeal notwithstanding his failure to object to exclusion from the side-bar conferences during jury selection. The defendant could have waived his presence, of course, (see, People v. Webb, 78 NY2d 335, 339-340 [575 N.Y.S.2d 656, 581 N.E.2d 509], but no waiver had been requested because under the existing practice there was no reason to do so". (People v. Mitchell, supra, at 525, 591 N.Y.S.2d 990, 606 N.E.2d 1381).

While, therefore, the Court of Appeals has not spoken on the issue before us, this court has held, a year and a half after the decision in Mitchell, in a case where no prospective juror who was questioned in the absence of defendant was selected to serve on the jury that "any loss of the opportunity to observe prospective jurors cannot be said to have operated to defendant's prejudice" (People v. Shabani, supra, at 143, 611 N.Y.S.2d 2; see also, People v. Arhin, 203 A.D.2d 62, 63, 609 N.Y.S.2d 604). In People v. Perez, 196 A.D.2d 781, 602 N.Y.S.2d 113, lv. denied 82 N.Y.2d 900, 610 N.Y.S.2d 167, 632 N.E.2d 477, also decided by us after the decision in Mitchell, we held a defendant to have waived the right to be present by affirmatively seeking inquiry in camera. It is noteworthy, that, in Perez, although one member of the panel did not agree with the theory of waiver, he concurred in the result since "none of the prospective jurors questioned in the defendant's absence were ultimately selected to serve on the jury which convicted him" (People v. Perez, concurrence by Justice Rosenberger, supra, at p. 784, 602 N.Y.S.2d 113).

Defendant's contention that the prosecutor became an unsworn witness when he cross-examined him about prior conflicting statements which he made pursuant to a cooperation agreement with the prosecutor is unpreserved and we decline to review it in the interest of justice. If we were to review it, we would find that the prosecutor laid a proper foundation and had a good faith basis for his questioning after defendant stated during his direct testimony that a prosecution witness was the mastermind of the underlying robbery (People v. Wise, 46 N.Y.2d 321, 326, 413 N.Y.S.2d 334, 385 N.E.2d 1262; People v. Gordon, 202 A.D.2d 166, 168, 608 N.Y.S.2d 192, lv. denied 83 N.Y.2d 911, 614 N.Y.S.2d 393, 637 N.E.2d 284).

We have considered defendant's remaining contention and find it to be without merit.

All concur except MURPHY, P.J. who dissents in a memorandum as follows.

MURPHY, Presiding Justice (dissenting):

In People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95, the Court of Appeals reiterated that insofar as voir dire concerns the capacity of a juror for impartiality, it is a material stage of the trial at which the defendant has the right to be present. Indeed, in reaffirming the statutory right of a defendant to be present and participate along with counsel during the substantive portions of the voir dire proceeding, the Court indicated with evident resolve that the practice of conducting voir dire out of the defendant's presence would no longer be tolerated and that, as with the denial of the right to be present at any other material stage of the trial, such a denial at voir dire would result in a reversal and a new trial regardless of whether the error had been preserved or whether there had been prejudice to the defendant (id. at 250, 590 N.Y.S.2d 33, 604 N.E.2d 95). It was, in fact, an essential premise of the subsequent decision in People v. Mitchell, 80 N.Y.2d 519, 591 N.Y.S.2d 990, 606 N.E.2d 1381, holding Antommarchi applicable prospectively only, that Antommarchi constituted a marked change if not in the state of the underlying law, at least in the Court's attitude toward its enforcement; a practice which had been widely tolerated was by reason of Antommarchi to be categorically discontinued and it was in the end to avoid the costly and disruptive effects of too abrupt and unheralded a change that the usual rule to the effect that appellate law is applicable to all cases still pending upon the appellate ladder, was excepted to (Mitchell, supra, at 529-530, 591 N.Y.S.2d 990, 606 N.E.2d 1381).

In the case at hand, the defendant maintains that he was on two occasions occurring respectively on October 28th and 29th, 1992--subsequent to the Court of Appeals decision in Antommarchi--denied his right to be present and participate during the conduct of voir dire. On the first of these dates a prospective juror approached the bench to discuss whether he could accept and apply the law as explained by the judge, and on the second, the court had a discussion with a different potential juror focusing upon her capacity to remain objective despite having been a victim of crime.

The record does not indicate the defendant's presence at the aforementioned sidebar conducted on October 28th. ¹ Moreover, the exclusion of the defendant from the October 29th sidebar is conceded by the People. ²

The People seek to avoid the adverse dispositive effect of these exclusions by speculating that although the defendant was not present he might nonetheless have overheard what transpired between the court and the prospective jurors at the sidebars. The acuity of the defendant's hearing, however, cannot be presumed, nor is it even a relevant point of inquiry where as here it is clear that regardless of what he may have overheard, the defendant was by reason of his exclusion effectively prevented from participating in his defense during a material stage of the proceedings. Plainly, the right to be present during the trial of an indictment entails more than passive audition. The defendant's presence is required not so that he or she may bear mute witness to the proceedings but in order to assure him or her the opportunity actively to participate in the defense. Obviously, the circumstance that a defendant otherwise excluded from the proceedings might nonetheless have been within earshot cannot be viewed as satisfying either the letter or the purpose of the...