People v. Wilkins, 230

• Decision Date: 22 August 2019
• Docket Number: 230,KA 13–02068
• Citation: 175 A.D.3d 867,107 N.Y.S.3d 521
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. William A. WILKINS, also known as Mugsy, Defendant–Appellant.

175 A.D.3d 867
107 N.Y.S.3d 521

The PEOPLE of the State of New York, Respondent,
v.
William A. WILKINS, also known as Mugsy, Defendant–Appellant.

230
KA 13–02068

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: August 22, 2019

MEMORANDUM AND ORDER

175 A.D.3d 867

It is hereby ORDERED that the judgment so appealed from is modified on the law by directing that the sentence imposed on count one of the indictment shall run concurrently with the consecutive sentences imposed on the remaining counts, and as modified the judgment is affirmed.

Memorandum: On appeal from a judgment convicting him upon a jury verdict of murder in the second degree ( Penal Law § 125.25[3] [felony murder] ), three counts of robbery in the first degree (§ 160.15[2] ), and two counts of attempted robbery in the first degree (§§ 110.00, 160.15[2] ), defendant contends that the judgment must be reversed because of several errors that Supreme Court made during jury selection and in its instructions to the jury. We reject those contentions.

Defendant contends that the court violated the rule in People v. Antommarchi, 80 N.Y.2d 247, 250, 590 N.Y.S.2d 33, 604 N.E.2d 95 [1992], rearg. denied 81 N.Y.2d 759, 594 N.Y.S.2d 720, 610 N.E.2d 393 [1992] when it conducted several sidebar conferences in his absence and that reversal is required with respect to two of those conferences. We disagree with defendant that reversal is required as a result of any violation of defendant's Antommarchi rights. It is well settled that a criminal defendant has a statutory right to be present at all material stages of

175 A.D.3d 868

the trial (see CPL 260.20 ; People v. Sprowal, 84 N.Y.2d 113, 117, 615 N.Y.S.2d 328, 638 N.E.2d 973 [1994] ), including the sidebar questioning of a prospective juror when the purpose of the questioning is "intended to search out a prospective juror's bias,

107 N.Y.S.3d 524

hostility or predisposition to believe or discredit the testimony of potential witnesses" ( Antommarchi, 80 N.Y.2d at 250, 590 N.Y.S.2d 33, 604 N.E.2d 95 ; see People v. Velasquez, 1 N.Y.3d 44, 47, 769 N.Y.S.2d 156, 801 N.E.2d 376 [2003] ; People v. Sloan, 79 N.Y.2d 386, 392, 583 N.Y.S.2d 176, 592 N.E.2d 784 [1992] ). Nevertheless, "reversal is not required when, because of the matter then at issue before the court or the practical result of the determination of that matter, the defendant's presence could not have afforded him or her any meaningful opportunity to affect the outcome" ( People v. Roman, 88 N.Y.2d 18, 26, 643 N.Y.S.2d 10, 665 N.E.2d 1050 [1996], rearg. denied 88 N.Y.2d 920, 646 N.Y.S.2d 988, 670 N.E.2d 229 [1996] ). In determining whether the defendant's presence could have afforded him or her such an opportunity, the test is whether the record negates the possibility that the defendant "could have provided valuable input on his [or her] counsel's apparently discretionary choice to excuse those venire persons" ( People v. Feliciano, 88 N.Y.2d 18, 28, 643 N.Y.S.2d 10, 665 N.E.2d 1050 [1996] ). Thus, reversal is not required where the defendant's attorney does not exercise a choice to exclude a prospective juror, such as where a prospective juror is excused for cause or where the People have exercised a peremptory challenge to the prospective juror (see People v. Camacho, 90 N.Y.2d 558, 561, 664 N.Y.S.2d 578, 687 N.E.2d 396 [1997] ; Feliciano, 88 N.Y.2d at 28, 643 N.Y.S.2d 10, 665 N.E.2d 1050 ; People v. Lucious, 269 A.D.2d 766, 768, 704 N.Y.S.2d 758 [4th Dept. 2000] ).

Here, we conclude that defendant had no opportunity to provide any input that might have affected the outcome regarding the relevant prospective jurors. One of the subject prospective jurors was sua sponte excused by the court for cause. Although defense counsel stated that he did not oppose that decision, the court had already made its determination when that statement was made, and thus "defendant's presence [at the conference regarding that prospective juror] could not have afforded him ... any meaningful opportunity to affect the outcome" ( Roman, 88 N.Y.2d at 26, 643 N.Y.S.2d 10, 665 N.E.2d 1050 ).

We reach the same conclusion regarding the second prospective juror at issue. In this trial, which involved two defendants and two defense counsels, the record establishes that the court directed each defense counsel to independently exercise peremptory challenges, without input from the other defense counsel (cf. CPL 270.25[3] ). No objection to that procedure was raised. In addition, the record establishes that defense counsel for the codefendant exercised his peremptory challenges before defense counsel for defendant. Thus, the record demonstrates that the codefendant's defense counsel exercised a peremptory

175 A.D.3d 869

challenge to the second prospective juror, before defendant's defense counsel had any opportunity to consider whether to challenge that prospective juror. Thus, we further conclude that, under the circumstances of this case, defendant could not "have provided valuable input" ( Feliciano, 88 N.Y.2d at 28, 643 N.Y.S.2d 10, 665 N.E.2d 1050 ), or indeed any input, regarding the peremptory challenge of that prospective juror. Therefore, reversal is not required.

Although the court erred in instructing the jury, without a request for such an instruction from defendant, that it was to draw no adverse inference from defendant's failure to testify (see generally CPL 300.10[2] ), "the court's unrequested remarks ... about defendant's possible failure to testify do not call for reversal" inasmuch as any error was harmless (

107 N.Y.S.3d 525

People v. Koberstein, 66 N.Y.2d 989, 991, 499 N.Y.S.2d 379, 489 N.E.2d 1281 [1985] ; see People v. Robtoy, 144 A.D.3d 1190, 1192, 40 N.Y.S.3d 630 [3d Dept. 2016], lv denied 28 N.Y.3d 1150, 52 N.Y.S.3d 301, 74 N.E.3d 686 [2017] ; People v. Robinson, 1 A.D.3d 985, 986, 768 N.Y.S.2d 50 [4th Dept. 2003], lv denied 1 N.Y.3d 633, 777 N.Y.S.2d 32, 808 N.E.2d 1291 [2004], reconsideration denied 2 N.Y.3d 805, 781 N.Y.S.2d 304, 814 N.E.2d 476 [2004] ). We also reject defendant's contention that reversal is required because the court sua sponte explained to the jury that the third person at defendant's table was a deputy and referred to defendant's custodial status. The court instructed the jury that "it was to draw no unfavorable inferences from the fact that defendant was in custody and unable to make bail, and the jury is presumed to have followed that instruction" ( People v. Pressley, 156 A.D.3d 1384, 1384, 68 N.Y.S.3d 270 [4th Dept. 2017], amended on rearg 159 A.D.3d 1619, 70 N.Y.S.3d 439 [4th Dept. 2018], lv dismissed 31 N.Y.3d 1085, 79 N.Y.S.3d 107, 103 N.E.3d 1254 [2018] ; see also People v. Konovalchuk, 148 A.D.3d 1514, 1516, 50 N.Y.S.3d 193 [4th Dept. 2017], lv denied 29 N.Y.3d 1082, 64 N.Y.S.3d 172, 86 N.E.3d 259 [2017] ; see generally People v. Smith, 23 A.D.3d 415, 415, 804 N.Y.S.2d 774 [2d Dept. 2005], lv denied 6 N.Y.3d 781, 811 N.Y.S.2d 348, 844 N.E.2d 803 [2006] ).

As defendant contends and the People correctly concede, however, the court erred in directing that the sentence on the felony murder count run consecutively to the consecutive sentences on the robbery and attempted robbery counts (see People v. Glover, 117 A.D.3d 1477, 1478, 984 N.Y.S.2d 726 [4th Dept. 2014], lv denied 23 N.Y.3d 1036, 993 N.Y.S.2d 250, 17 N.E.3d 505 [2014], reconsideration denied 24 N.Y.3d 961, 996 N.Y.S.2d 220, 20 N.E.3d 1000 [2014] ; see generally People v. Parks, 95 N.Y.2d 811,...