People v. DavidsonPeople v. Davidson
—Judgmеnt, Supreme Court, New York County (Clifford Scott, J.), rendered July 14, 1993, convicting defendant, after a trial by jury, of robbery in the first degree and robbery in the second degree and sentencing him, as a second felony offender, to concurrent terms of 121/2 to 25 years and 71/2 to 15 years, respectively, reversed, on the law, and the matter remanded for a new triаl.
Upon defendant’s appeal, this Court remanded for a reconstruction hearing to resolve certain factual issues regarding the voir dire, which, over defense counsel’s objection, had not been recordеd (210 Áí)2d 76). After reviewing the factual find
Initially, we note that, as to six of the sidebar colloquies with potential jurors at which, defеndant argues, he was deprived of his right to be present, the testimony at the reconstruction hearing conclusively established that the jurors in question were not ultimately selected to sit on the jury. This Court has held that, under these circumstances, vacatur of the conviction is not warranted (People v Roman,
However, as to the seventh prospective jurоr as to whom defendant made this argument, the evidence shows that the juror did, in fact, ultimately serve. Moreover, the evidence reveals that defendant, who was seated 10 feet from the Bench and could not possibly have heard the exchange, was clearly deprived of his right to be present at the bench conferencе with this prospective juror (People v Antommarchi,
Moreover, we reject the prosecution’s argument that the court’s instruction tо defense counsel following the colloquy to “explain it to [the defendant]” adequately addressed defеndant’s right to be present. The court made no attempt to replicate de novo for the defendant the events whiсh had occurred at the sidebar in his absence (cf., People v Starks, supra; People v Madera,
Furthermore, we reject the prosecution’s argument that this argument is not preserved for our review under People v Robles (
In this case, contrary to Robles, it is clear that the defendant was not physically present at the sidebar and the court was obviously on notiсe that he was absent. In any case, even were normal rules of preservation to apply (but see, People v Antommarchi, supra, at 250), we would find that the within claim was preserved. At the outset of voir dire, when the court announced its intention to “play it by ear” regarding whether it would permit defendant to be present at sidebars, defense
Thus, the uncontradicted evidence at the reconstruction hearing leaves no doubt that defendant was deprived of his right to be present. His conviction must therefore be reversed, and the matter remanded fоr a new trial. Concur — Ellerin, J. P., Williams and Tom, JJ.
Kupferman, J., dissents in a memorandum as follows: I dissent and would affirm the conviction.
Thе evidence of guilt was overwhelming and so we are faced with the question only of whether a new trial should be granted because the defendant was not present during the whole of the colloquy with one who became а member of the jury and had sidebar discussion (see, People v Antommarchi,
As the majority indicates, the Trial Judge "play[ed] it by ear” and in doing so, recоgnized during the sidebar discussion that defendant’s Antommarchi rights were implicated and ordered that he be brought to the Bench. The prospective juror was talking about two old prior arrests for civil disobedience. The defendant was prеsent for the last part of the discussion. The Trial Judge told defense counsel to explain to the defendant whаt had occurred. At the reconstruction hearing, we were told that defense counsel had not in fact explained it to the defendant, but simply told him "this guy is good for us”. The Trial Judge was not earlier informed that the defendant had not bеen given the reason that made this juror satisfactory to the defense although, of course, we know why he was sаtisfactory.
As the Court of Appeals concluded in People v Robles (