People v. Velez

Apr 15, 2003
Versions:304 A.D.2d 391
756 N.Y.S.2d 848
2003 N.Y. App. Div. LEXIS 4106

Appeal from judgment, Supreme Court, Bronx County (Efrain Alvarado, J.), rendered June 29, 2000, convicting defendant, after a jury trial, of burglary in the second degree, and sentencing him, as a second felony offender, to a term of nine years, held in abeyance, and the matter remanded to the Supreme Court for a reconstruction hearing as to whether defendant knowingly, intelligently and voluntarily waived his right to attend robing room conferences with prospective jurors.

Prior to the commencement of jury selection, the trial court stated in the robing room, in the absence of defendant, that: “I have been informed by Defense Counsel that his client has chosen to remain outside in the courtroom during the preliminary screening. Is that correct?” In response, defense counsel stated: “That’s correct.” Subsequently, the prospective jurors were questioned individually by the trial court and counsel in the robing room in the absence of defendant, and matters were explored that would require a defendant’s presence or waiver thereof.

It is well settled that a defendant’s waiver of his rights under People v Antommarchi (80 NY2d 247 [1992]) to be present at certain sidebar conferences with prospective jurors may be inferred from the totality of the record, and all the inferences that may be drawn therefrom (People v Keen, 94 NY2d 533, 538 [2000]; People v Brown, 256 AD2d 92 [1998], lv denied 93 NY2d 967 [1999]). On the record before us, it is unclear whether defendant had authorized his counsel to waive his Antommarchi rights before the parties entered the robing room and/or whether the trial court may have revisited the issue in an unrecorded colloquy. Accordingly, we remand the matter to Supreme Court to reconstruct the record as completely as possible to determine the circumstances of the waiver (see People v Holliday, 241 AD2d 399, 400 [1997], appeal withdrawn 246 AD2d 954 [1998]). Concur — Buckley, P.J., Mazzarelli, Sullivan, Ellerin and Lemer, JJ.