People v. Vargas

• Citation: 88 N.Y.2d 363,668 N.E.2d 879,645 N.Y.S.2d 759
• Parties: , 668 N.E.2d 879, 65 USLW 2059 The PEOPLE of the State of New York, Respondent, v. Evero VARGAS, Appellant. The PEOPLE of the State of New York, Respondent, v. Ronald PONDEXTER, Appellant. The PEOPLE of the State of New York, Respondent, v. Kenneth HUTTON, Appellant. The PEOPLE of the State of New York, Respondent, v. De Andre L. WILSON, Appellant.
• Decision Date: 13 June 1996
• Court: New York Court of Appeals

Page 759

645 N.Y.S.2d 759

88 N.Y.2d 363, 668 N.E.2d 879, 65 USLW 2059

The PEOPLE of the State of New York, Respondent, v. Evero VARGAS, Appellant.

The PEOPLE of the State of New York, Respondent, v. Ronald PONDEXTER, Appellant.

The PEOPLE of the State of New York, Respondent, v. Kenneth HUTTON, Appellant.

The PEOPLE of the State of New York, Respondent, v. De Andre L. WILSON, Appellant.

Court of Appeals of New York.

June 13, 1996.

[88 N.Y.2d 367] [668 N.E.2d 881] William B. Carney, and Daniel L. Greenberg, New York City, for appellant in the first and second above-entitled actions.

Robert T. Johnson, District Attorney of Bronx County, Bronx (John F. Carroll Jr., Joseph N. Ferdenzi and Allen H. Saperstein of counsel), for respondent in the first above-entitled action.

[88 N.Y.2d 368] Charles J. Hynes, District Attorney of Kings County, Brooklyn (Barbara Thomashower and Roseann B. MacKechnie of counsel), for respondent in the second above-entitled action.

[88 N.Y.2d 369] Kannan Sundaram, and Daniel L. Greenberg, New York City, for appellant in the third above-entitled action.

Richard A. Brown, District Attorney of Queens County, Kew Gardens (Kevin G. Dumbach and Steven J. Chananie of counsel), for respondent in the third above-entitled action.

[88 N.Y.2d 370] David C. Schopp, Linda S. Reynolds and Barbara J. Davies, Buffalo, for appellant.

[88 N.Y.2d 371] Kevin M. Dillon, District Attorney of Erie County, Buffalo (Kimberly A. Phelan

[668 N.E.2d 882] and John J. DeFranks of counsel), for respondent in the fourth above-entitled action

OPINION OF THE COURT

BELLACOSA, Judge.

A common issue in these four separate cases involves continuing controversies concerning a defendant's right to personal presence at jury selection sidebar discussions (see, CPL 260.20; People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95, rearg. denied 81 N.Y.2d 759, 594 N.Y.S.2d 720, 610 N.E.2d 393). In People v. Vargas, People v. Pondexter and People v. Hutton, respective waivers of that right are challenged because the trial courts elicited defendants' choices to waive by stating that certain conditions would otherwise be attached to the examination of prospective jurors. In People v. Wilson, the Trial Judge engaged in a private conference sought by a frightened potential juror before any examinations began. The discussion was held without the defendant or any attorneys present, but a court reporter transcribed the conference and the Trial Judge sealed the transcript. In People v. Pondexter and People v. Wilson, other issues are also raised. We affirm the orders of the Appellate Division affirming the convictions in People v. Vargas, People v. Wilson and People v. Hutton; the order in People v. Pondexter should be reversed and a new trial ordered.

I. People v. Vargas

Defendant was convicted after a jury trial of robbery in the first degree. He was tried three weeks after this Court decided People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95, supra. Before the jury selection process began, the Trial Judge expressed reluctance to hold any sidebars at all if the defendant insisted on presence at the Bench with a prospective juror, because that practice in the court's experience had resulted in "the distinct uneasiness on the part of the juror." The court stated that "unless the defendant waives his presence personally now, all questions will be put to the jurors in public, and the jurors will answer all questions in public."

Defense counsel objected, arguing that exposing possibly sensitive questions to prospective jurors in public might "lead to a situation where a juror has personal or very private information that they do not feel comfortable discussing in open court," and there also might be a "hidden bias" or other prejudice that the jurors would conceal. Nevertheless, given the trial court's reluctance to hold sidebars at all with defendant present at the Bench with a prospective juror, the defendant waived his right to be present on the record. The subsequent voir dire examination of prospective jurors included several sidebar conferences without defendant's presence, but with both sides' lawyers present and participating.

The Appellate Division affirmed defendant's conviction, and a Judge of this Court granted defendant leave to appeal.

People v. Pondexter

Defendant's murder conviction after a jury trial arose out of a botched robbery committed by defendant and an accomplice. After the two stole money at gunpoint from two male victims, defendant shot and killed one of the men when the victim refused to give defendant his house keys. The other victim survived and testified, as did a second eyewitness, Sharon Valdez, who claimed at trial to have seen the entire incident from her window overlooking the street.

During the pretrial voir dire, the Judge asked the defendant if he wished to waive his right to be present at sidebars. The defendant, through counsel, initially indicated that he wanted to be present. The court then stated that "if he's brought up to the bench there'll be a number of court officers surrounding him at all times." Defense counsel suggested that the court instead "send the jury out," but the Trial Judge replied that "I can't send 60 people out every time somebody wants to come up to me." After discussing the case further with his lawyer, defendant signed a written waiver.

The day after Valdez testified and was cross-examined, defense counsel told the court in camera that he had spoken to Valdez ex parte after her testimony. Valdez told defense counsel privately--in sharp contrast to her incriminating testimony against the defendant--that she had been asleep on the night of the incident and did not see anything that occurred. Valdez's mother, Shirley Hudson, later testified for the defendant that her daughter had been asleep at the time of the criminal incident. On the following day, Valdez appeared in court with a court-appointed attorney. Both her attorney and Valdez indicated that she would assert her Fifth Amendment privilege against self-incrimination in response to any further questions.

The trial court ruled that Valdez had a basis to assert the Fifth Amendment and denied defense counsel's request to have her assert the privilege under oath in the presence of the jury. Defense counsel then requested that Valdez's testimony be stricken from the record. The trial court, however, denied the requested relief without comment or further inquiry.

The Appellate Division affirmed defendant's conviction, and a Judge of this Court granted defendant leave to appeal.

People v. Hutton

Defendant's conviction after a jury trial was for criminal possession of stolen property and unauthorized use of an automobile. At trial, the court told defendant that he was free to be present at sidebars, "if any take place," but added that if the defendant insisted on his personal presence, all jurors would remain in the jury box and be questioned in open court. Because of the "constraints of [the] ruling" and because defense counsel felt that "open comments from the jurors [would] kill their ability to speak forthrightly and honestly as to any prejudices," defendant personally waived his Antommarchi rights, stating that he did so of his own free will and that no one forced him to waive that right. The Appellate Division affirmed the conviction, and a Judge of this Court granted defendant leave to appeal.

People v. Wilson

This case presents a serious variation of the presence scenarios involving juror examination, in that the precipitating event occurred at an earlier stage than the usual prospective juror examinations. Wilson's second degree murder conviction arose out of his fatal shooting of a friend in a dispute over a woman, Ronnette Parker, who testified at trial as an eyewitness to the shooting. At trial, before the actual questioning of one particular jury panel had begun, one member of the prospective panel--the only juror at issue here--asked the court staff if he could speak to the Trial Judge privately. He did not want to serve as a juror, but neither did he want to speak out in open court, and certainly not in the presence or hearing of the defendant because of the nature of his concern--fear for his safety. He was taken to the Judge, who spoke with him alone without the presence of any of the lawyers or the defendant. Only a court reporter was present to make a record that was later sealed.

The juror stated that he knew the defendant from his neighborhood and was concerned for his safety if he were even considered for this jury service. He and the defendant were sufficiently acquainted to greet each other and speak on the street, but they did not know each other by name. The prospective juror told the Trial Judge he was afraid that the defendant would be mad at him if he said in open court that he did not want to serve as a juror, especially in light of the small number of minority jurors on the panel. The juror is himself African-American. His specific fear was that the defendant would have had friends from the neighborhood--who the juror knew were not then in jail--beat him up, shoot him or kill him. Finally, when the Trial Judge told the juror that defendant's counsel, if he were present, would have an obligation to tell defendant what occurred, the juror objected strenuously to the attorney's presence or even knowledge of his expressed fears.

The Trial Judge excused the juror. He informed the lawyers only that he had held an in camera examination relating to jury selection requested by a prospective juror and that he had sealed the transcript. Eighteen months after the defendant's conviction, the Trial Judge told the prosecutor and defense counsel the details of the excusal, and added that the defendant's extensive criminal history also supported his conclusion that the juror was credible and genuinely concerned for his safety.

The Appellate Division af...