People v. Wilkins
| Decision Date | 14 December 2021 |
| Docket Number | 35 |
| Citation | 37 N.Y.3d 371,179 N.E.3d 646,157 N.Y.S.3d 833 |
| Parties | The PEOPLE of the State of New York, Respondent, v. William A. WILKINS, Also Known as Mugsy, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Easton Thompson Kasperek Shiffrin LLP, Rochester (Brian Shiffrin of counsel), and Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of counsel), for appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), for respondent.
When a defendant is not present at a sidebar conference wherein the court actively solicits answers from a prospective juror which relate to issues of bias or hostility, People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95 (1992) requires a new trial in the absence of defendant's waiver of the right to be present. Defendant's protest in the trial court is generally not required. The purpose of the Antommarchi rule, as derived from CPL 260.20, is to provide defendant the opportunity to personally assess the juror's facial expressions and demeanor in order to provide meaningful input on the prospective juror's retention or exclusion from the jury. The question presented on this appeal is whether defendant, having explicitly waived his Antommarchi right to be present at sidebars in the middle of the voir dire proceeding involving a prospective juror who was ultimately struck when codefendant exercised a peremptory strike, is entitled to a new trial based on his absence from a pre-waiver sidebar conference with that same prospective juror. We conclude that the claimed error, under these unique circumstances, required defendant's protest in the trial court given his acquiescence in the post-waiver voir dire of the prospective juror after being invited to express any objection that he may have had regarding the pre-waiver sidebar conference. We therefore affirm.
Early one morning in August 2012, a group of customers formed a line outside a retail store to purchase newly released sneakers. Defendant and codefendant, armed with a gun, approached the line of waiting customers and robbed the victims of their wallets, keys, cellphones and jewelry. One person resisted the robbers’ efforts and was shot and killed during the ensuing struggle. The assailants fled the scene. Defendant and codefendant were subsequently arrested and charged by indictment with murder in the second degree, three counts of robbery in the first degree and two counts of attempted robbery in the first degree for their participation in the crimes. They proceeded to a joint trial.
During jury selection, the court conducted a voir dire in open court of each of the first 14 prospective jurors, including Juror 8, hereinafter referred to as CK. Before a recess and in response to the court's query whether any of the prospective jurors had anything to add to the proceedings, CK asked to approach the bench. It is undisputed that defendant had a right to be present at the sidebar with prospective juror CK, wherein she related that her nephew was a defendant in a federal drug prosecution and the court made inquiry of her general bias or hostility with regard to her nephew's unrelated criminal case. Defendant, although represented by counsel, was not present during this sidebar conference, remaining seated at counsel table. At the conclusion of the sidebar conference with counsel, CK was returned to the jury panel for the continuation of the court's voir dire.
The prospective jurors exited the court for a lunch recess and defendant's counsel moved for a mistrial and for a new jury panel on two grounds. He first argued that defendant was prejudiced by the court's instruction that the jurors should not draw any adverse inference regarding his client's right not to testify because he did not request that instruction. He also objected to the court instructing the panel not to speculate as to the presence of sheriff's deputies sitting at the defense table. The court denied the motion and recessed for lunch.
After the luncheon recess, the People alerted the court that it had failed to advise defendant and codefendant of their Antommarchi rights and obtain a waiver of their right to be present at the sidebars. The People requested that the court review the right with both defendants and ask them if they were willing to waive their presence at the conferences, offering to give brief details of what had occurred at the prior sidebar conferences. The court, with both defendants present, advised the following:
After conferring with defendant, counsel acknowledged that the court had accurately described what had taken place thus far and explicitly waived defendant's right to be present at any sidebar unless the court was notified otherwise. Defendant confirmed the waiver. At that juncture, the prospective jurors returned to the courtroom and jury selection resumed with the attorneys conducting the voir dire, each asking their own questions collectively and individually of the prospective jurors, including CK. Defense counsel even constructed a hypothetical that incorporated CK.
At the conclusion of the voir dire of this first panel, defendant, his counsel, codefendant and codefendant's counsel retired to a separate room to discuss their joint use of peremptory challenges ( CPL 270.25 [3] ). Upon their return to open court, codefendant's counsel peremptorily challenged prospective juror CK and defendant did not object. During the remainder of jury selection, defendant never requested to be present at any sidebars. Defendant was convicted as charged.2
On appeal, the Appellate Division modified the sentence and, as modified, affirmed the judgment, with one Justice dissenting (175 A.D.3d 867, 107 N.Y.S.3d 521 [4th Dept. 2019] ). The Court rejected defendant's claim that his Antommarchi rights were violated due to his absence from the sidebar conference with respect to prospective juror CK, finding that "the record establishe[d] that the court directed each defense counsel to independently exercise peremptory challenges, without input from the other defense counsel," a violation of CPL 270.25 (3), and codefendant's "counsel exercised a peremptory challenge to the second prospective juror [CK], before defendant's defense counsel had any opportunity to consider whether to challenge that prospective juror" ( 175 A.D.3d at 868-869, 107 N.Y.S.3d 521 ). Defendant's remaining arguments were rejected.3
The dissenting Justice voted to reverse and grant a new trial based on defendant's absence from the sidebar conference involving CK. The dissent observed that there was no support in the record for the majority's conclusion that CPL 270.25 (3) was not followed at trial—instead, the jointly tried defendants shared peremptory challenges which could be exercised only by majority vote. Because defendant was entitled to have input into codefendant's peremptory challenge of CK, the dissent concluded that the Antommarchi error was prejudicial, and warranted a new trial (see 175 A.D.3d at 871-872, 107 N.Y.S.3d 521 ).
The dissenting Justice granted defendant's application for leave to appeal to this Court.
In New York, defendants have a statutory right to be personally present at sidebar conferences involving the voir dire "of prospective jurors concerning their ability to weigh the evidence objectively" ( People v Davidson, 89 N.Y.2d 881, 882, 653 N.Y.S.2d 254, 675 N.E.2d 1206 [1996] ; Antommarchi , 80 N.Y.2d at 250, 590 N.Y.S.2d 33, 604 N.E.2d 95 ). A defendant's presence at sidebar discussions involving prospective jurors on certain subjects is "critical" because it allows a defendant the opportunity "to assess the jurors’ facial expressions, demeanor and other subliminal responses as well as the manner and tone of their verbal replies so as to detect any indication of bias or hostility" ( People v Sloan, 79 N.Y.2d 386, 392, 583 N.Y.S.2d 176, 592 N.E.2d 784 [1992] ). In determining whether attendance at sidebar requires a defendant's presence, the court's consideration centers on whether the "defendant might have provided valuable input regarding his attorney's discretionary decision to excuse" venire members or consent to their excusal ( Davidson, 89 N.Y.2d at 883, 653 N.Y.S.2d 254, 675 N.E.2d 1206 ). However, the statutory right to be present alongside defense counsel at a sidebar conference can be waived "by a voluntary, knowing and intelligent choice" ( People v. Vargas , 88 N.Y.2d 363, 375-76, 645 N.Y.S.2d 759, 668 N.E.2d 879 [1996] ), and the waiver can be either express or implied (see People v. Spotford , 85 N.Y.2d 593, 627 N.Y.S.2d 295, 650 N.E.2d 1296 [1995] ; People v. Flinn , 22 N.Y.3d 599, 984 N.Y.S.2d 283, 7 N.E.3d 496 [2014] ). The form of the waiver is "flexible" and can be made by counsel (see Flinn , 22 N.Y.3d at 602, 984 N.Y.S.2d 283, 7 N.E.3d 496 ; Vargas , 88 N.Y.2d at 376, 645 N.Y.S.2d 759, 668 N.E.2d 879 ).
The right conferred by Antommarchi is not predicated upon defendant's constitutional right to confront witnesses (see People v. Mitchell , 80 N.Y.2d 519, 527-528, 591 N.Y.S.2d 990, 606 N.E.2d 1381 [1992] ) or to be present during proceedings that involve factual matters for which the defendant possesses peculiar knowledge of the salient facts, such as Sandoval or Ventimiglia hearings ( People v. Dokes, 79 N.Y.2d 656, 661, 584 N.Y.S.2d 761, 595 N.E.2d 836 [1992] ; Spotford, 85 N.Y.2d at 597, 627 N.Y.S.2d 295, 650 N.E.2d 1296 ). Nor is there any constitutional infirmity in the exclusion of a defendant from a sidebar conference (see Mitchell , 80 N.Y.2d at 527, ...
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