People v. Toliver
| Decision Date | 19 November 1996 |
| Citation | 89 N.Y.2d 843,675 N.E.2d 463,652 N.Y.S.2d 728 |
| Parties | , 675 N.E.2d 463 The PEOPLE of the State of New York, Respondent, v. Michael TOLIVER, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Simpson Thacher & Bartlett, New York City (Lawrence M. Young, of counsel), Whitney Tymas, Richard Greenberg and E. Joshua Rosenkranz, for appellant.
Robert M. Morgenthau, District Attorney of New York County, New York City (Mark Dwyer, of counsel), for respondent.
The order of the Appellate Division should be reversed and a new trial ordered.
Defendant was arrested and charged with sodomy in the second degree (Penal Law § 130.45). The first trial on the indictment resulted in a hung jury. Upon retrial, the jury convicted defendant as charged. Thereafter, defendant was sentenced as a predicate felon to an indeterminate prison term of 2 1/2 years to 5 years. Defendant served 3 1/2 years of this term and is currently on parole.
On appeal, defendant argues that reversal of his conviction is required due to the Trial Judge's absence from the courtroom during the prosecutor's questioning of the prospective jurors.
The presence of and supervision by a Judge constitutes an integral component of the right to a jury trial (People v. Ahmed, 66 N.Y.2d 307, 311-312, 496 N.Y.S.2d 984, 487 N.E.2d 894). Since the selection of the jury is part of the criminal trial (see, People v. Velasco, 77 N.Y.2d 469, 472, 568 N.Y.S.2d 721, 570 N.E.2d 1070; People v. Mullen, 44 N.Y.2d 1, 4, 403 N.Y.S.2d 470, 374 N.E.2d 369), a defendant has a fundamental right to have a Judge preside over and supervise the voir dire proceedings while prospective jurors are being questioned regarding their qualifications. A Judge who relinquishes control over the proceedings or delegates the duty to supervise deprives a defendant of the right to a trial by jury, requiring reversal (see, e.g., People v. Torres, 72 N.Y.2d 1007, 1008-1009, 534 N.Y.S.2d 914, 531 N.E.2d 635; People v. Ahmed, 66 N.Y.2d, at 311-312, 496 N.Y.S.2d 984, 487 N.E.2d 894, supra; see also, People v. Parisi, 276 N.Y. 97, 99, 11 N.E.2d 554).
Here, the Judge's absence from portions of the actual voir dire examination of jurors by counsel violated these fundamental precepts. In the end, it is the Judge who is the ultimate arbiter of a prospective juror's fitness to serve (see, CPL 270.20; see also, People v. Payne, 88 N.Y.2d 172, 643 N.Y.S.2d 949, 666 N.E.2d 542; People v. Allen, 86 N.Y.2d 101, 629 N.Y.S.2d 1003, ...
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Coddington v. State , D–2008–655.
...that a judge's absence, relinquishing control of the proceedings, deprives a defendant of a fair trial. People v. Toliver, 89 N.Y.2d 843, 652 N.Y.S.2d 728, 675 N.E.2d 463, 464 (1996)(judge absent during voir dire ). However, that Court has more recently applied a harmless error analysis to ......
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...of his right to a proper trial by jury” (id. at 311, 496 N.Y.S.2d 984, 487 N.E.2d 894 ).Years later in People v. Toliver, 89 N.Y.2d 843, 652 N.Y.S.2d 728, 675 N.E.2d 463 (1996), we acknowledged that “[t]he presence of and supervision by a Judge constitutes an integral component of the right......
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...of his right to a proper trial by jury” (id. at 311, 496 N.Y.S.2d 984, 487 N.E.2d 894 ).Years later in People v. Toliver, 89 N.Y.2d 843, 652 N.Y.S.2d 728, 675 N.E.2d 463 (1996), we acknowledged that “[t]he presence of and supervision by a Judge constitutes an integral component of the right......
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...ability to weigh the evidence" are explored ( 80 N.Y.2d at 250, 590 N.Y.S.2d 33, 604 N.E.2d 95 ; see also People v. Toliver , 89 N.Y.2d 843, 844, 652 N.Y.S.2d 728, 675 N.E.2d 463 [1996] ["the selection of the jury is part of the criminal trial"]; People v. Velasco , 77 N.Y.2d 469, 472, 568 ......
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...28 N.Y.3d 355, 358, 68 N.E.3d 61, 63 (2016). In criminal cases, a judge must be present during the entire voir dire . People v. Toliver, 89 N.Y.2d 843 (1996). However, where it was unclear whether a judge who left the courtroom for a very short time could or could not hear the proceedings, ......
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..., 28 N.Y.3d 355, 358, 68 N.E.3d 61, 63 (2016). In criminal cases, a judge must be present during the entire voir dire. People v. Toliver, 89 N.Y.2d 843 (1996). However, where it was unclear whether a judge who left the courtroom for a very short time could or could not hear the proceedings,......