Was Right to Be Present “Waived” by “Acquiescence”?

Those of us of a certain age remember how the 1995 murder trial of O.J. Simpson was beleaguered and delayed by the many lengthy “sidebar conferences” that were held with defense counsel by Justice Lance Ito. But who knew, as a recent case before the New York Court of Appeals demonstrates, that over time a complicated line of jurisprudence has been developed over the right of the defendant to attend the “sidebar”.

When a defendant is not present at a sidebar conference where the Court actively solicits answers from a prospective juror which relate to issues of bias or hostility, People v Antommarchi requires a new trial in the absence of defendant’s waiver of the right to be present. Defendant’s protest at 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 recently presented to the New York Court of Appeals was whether William A. Wilkins, 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, was entitled to a new trial based on his absence from a pre-waiver sidebar conference with that same prospective juror.

Early one morning in August 2012, a group of customers formed a line outside a retail store to purchase newly released sneakers. Wilkins 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. Wilkins 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, 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 was undisputed that Wilkins had a right to be present at the sidebar with prospective juror CK, who 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. Wilkins, although represented by counsel, was not present during that 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 Wilkins’ counsel moved for a mistrial and for a new jury panel on two grounds. He first argued that Wilkins 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 Wilkins 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:

“I always give them the opportunity to appear with their clients, if they wish. On the other hand, if they wish to waive their right to be present then you can do that, as well. As to the four separate bench conferences, the defendants remained at the counsel table with the prosecutors and defense attorneys present. Is that still the intention of each of the clients, [defense counsel]?”

After conferring with Wilkins, counsel acknowledged that the Court had accurately described what had taken place thus far and explicitly waived his client’s right to be present at any sidebar unless the Court was notified otherwise. Wilkins 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. Wilkins’ counsel even constructed a hypothetical that incorporated CK.

At the conclusion of the voir dire of this first panel, Wilkins, his counsel, codefendant and codefendant’s counsel retired to a separate room to discuss their joint use of peremptory challenges. Upon their return to open court, codefendant’s counsel peremptorily challenged prospective juror CK, and Wilkins’ attorney did not object. During the remainder of jury selection, Wilkins never requested to be present at any sidebars. Wilkins was convicted as charged.

On appeal, the Appellate Division modified the sentence and, as modified, affirmed the judgment, with one Justice dissenting. The Court rejected Wilkins’ 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 [Wilkins’] defense counsel had any opportunity to consider whether to challenge that prospective juror”.

The dissenting Justice voted to reverse and grant a new trial based on Wilkins’ 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 Wilkins 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.

The dissenting Justice granted Wilkins’ application for leave to appeal to the Court of Appeals.

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”. 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”.  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. However, the statutory right to be present alongside defense counsel at a sidebar conference can be waived “by a voluntary, knowing and intelligent choice” and the waiver can be either express or implied. The form of the waiver is “flexible” and can be made by counsel (see Flinn, 22 NY3d at 602; Vargas, 88 NY2d at 376

The right conferred by Antommarchi is not predicated upon defendant’s constitutional right to confront witnesses or to be present during proceedings that involve factual matters for which the defendant possesses peculiar knowledge of the salient facts. Nor is there any constitutional infirmity in the exclusion of a defendant from a sidebar conference. Rather, the right is statutory, contained in CPL 260.20, and ensures a defendant’s right to personal presence during jury selection for the purpose of assessing a prospective juror’s demeanor in order to have meaningful input about that juror’s bias or hostility. The holding in Antommarchi “represented a dramatic shift away from [the] customary and established procedure” of having defense counsel appear alone at sidebars and, as a result, was held not to be retroactive. However, prospectively, Antommarchi violations generally may be raised on appeal even absent an objection in the trial court.]).

Here, Wilkins argued that his absence from the sidebar conference with CK—a conference that was preceded by open-court voir dire of CK by the court and followed by his explicit waiver of his Antommarchi rights as well as open-court voir dire of CK by the attorneys—required a new trial.

Pivotally, the Antommarchi violation was addressed by the Court at a time when any error in the ongoing proceeding as to CK was easily curable. To be sure, the Court apprised Wilkins of his Antommarchi rights in the middle of the voir dire of CK. Wilkins immediately and explicitly waived those rights, a demonstration that he trusted his attorney to convey to him the information imparted at that sidebar without requiring his presence. He made no protest as to his absence from the pre-waiver sidebar conference with CK, despite being informed of the right and invited to object. Wilkins was indisputably present as the Court and then his counsel conducted further voir dire of CK, giving him ample opportunity to assess her demeanor and provide meaningful input as to his view of her suitability, satisfying the fundamental objective of the holding in Antommarch. Wilkins’ failure to object after being given the opportunity to do so was entirely consistent with his express waiver of the right to be present at such sidebars, trusting his counsel to act on his behalf while he personally witnessed the Court’s and his counsel’s voir dire of CK in open court. Wilkins was then given the opportunity to provide meaningful input when he convened privately with his counsel, his codefendant and codefendant’s counsel to discuss any challenges to the jury panel⁴ . Under the circumstances presented here, Wilkins’ continued participation in the post-waiver voir dire proceeding of CK was nothing less than acquiescence to that proceeding as a whole. The core purpose of Antommarchi was fulfilled and the proceedings required no further remedy by the trial court.

In sum, under the circumstances presented, Wilkins’ acquiescence to the continued voir dire of prospective juror CK in open court, after he explicitly waived his Antommarchi rights and failed to object to his pre-waiver absence from the brief sidebar with CK despite being invited to object, rendered his claim unavailing.

Accordingly, the order of the Appellate Division was affirmed.

FAHEY, J. (dissented):

Criminal defendants have “a fundamental right to be present during any material stage of the trial,” which includes sidebar discussions with prospective jurors regarding their “backgrounds and their ability to weigh the evidence objectively”… “[B]ecause [a] defendant ha[s] a fundamental right to be present” at such sidebar conferences with prospective jurors, a defendant’s “failure to object to being excluded from the side-bar discussions is not fatal to [that] claim”.

That had been the law since the Antommarchi case was decided, nearly 30 years ago. The Court of Appeals had since reaffirmed that “the right to be present at sidebar questioning need not be preserved by objection”. In this case, the majority holds that because Wilkins did not object when he was informed about an Antommarchi violation that had already occurred, and he then participated in additional voir dire regarding that prospective juror, he effectively “acquiesced” in or “cured” the violation. There was no functional distinction between that holding and a holding that a defendant was required to preserve a claim regarding an Antommarchi violation for appellate review. The Court’s holding is contrary to established case law and will impair a defendant’s fundamental right to be present at material stages of the trial.

There was no dispute on the appeal that an Antommarchi violation occurred. Prospective juror CK approached the bench in Wilkin’s absence and discussed with the Court and the attorneys an issue that related to her possible bias or hostility. The majority acknowledged that Wilkins had the right to be present at that sidebar discussion with CK. The People conceded that the sidebar discussion with prospective juror CK constituted an Antommarchi violation because Wilkins was not present and had not yet waived his right to be present⁵. And the record demonstrated that the Court did not mention to Wilkins or his codefendant that they had the right to be present at such sidebar conferences until after four such sidebar conferences had already occurred. The only dispute on the appeal was whether Wilkins was entitled to reversal and a new trial for the conceded Antommarchi violation. The People contended that because Wilkins did not object when he was subsequently informed of the Antommarchi violation that had already occurred, he impliedly and retroactively waived the prior Antommarchi violation.

The majority did not expressly adopt the People’s position of implied retroactive waiver, which would constitute a drastic expansion of the Court’s jurisprudence on the implied waiver of the right to be present. A defendant may waive the right to attend sidebar conferences with prospective jurors, and may do so impliedly, but we have held that an implied waiver had occurred only when the defendant has previously been informed of the right to attend sidebar conferences and then, by remaining at counsel table, choose not to attend those sidebar conferences.

The majority’s application of implied waiver did not comport with the Court’s traditional understanding of what constitutes a “waiver” of the right to be present. In order to effect a voluntary, knowing and intelligent waiver, the defendant must, at a minimum, be informed in some manner of the nature of the right to be present. Criminal defendants cannot implicitly waive a right that they do not know they have. To waive the right to attend sidebar conferences with prospective jurors, a defendant must be informed that the right to attend exists.

And nothing Wilkins or his counsel said after the prior Antommarchi violation was brought to their attention constituted an express waiver of the Antommarchi violation that had already occurred. Wilkins and his counsel merely confirmed that he was waiving his right to be present at sidebar conferences with prospective jurors that might occur in the future, and even then, he reserved his right to approach on a case-by-case basis.

Instead, the majority concluded that, because CK remained on the panel after the Antommarchi violation occurred, and Wilkins had the opportunity to assess her demeanor during the remainder of voir dire, the “fundamental objective of the holding in Antommarchi” was satisfied. That position was illogical. If the opportunity to assess a prospective juror’s demeanor during voir dire in open court was sufficient to satisfy the fundamental objectives of the Antommarchi holding, then why does a defendant’s Antommarchi right to attend sidebar conferences with prospective jurors exist? Antommarchi itself answered that question:

“The court may not, however, explore prospective jurors’ backgrounds and their ability to weigh the evidence objectively unless defendant is present. Defendants are entitled to hear questions intended to search out a prospective juror’s bias, hostility or predisposition to believe or discredit the testimony of potential witnesses and the venire person’s answers so that they have the opportunity to assess the juror’s facial expressions, demeanor and other subliminal responses”.

The majority’s alternative rationale that Wilkins “acquiesced” in the Antommarchi violation, with respect to CK because he did not object after the Antommarchi violation was called to his attention, was equally inconsistent with the Court’s precedent. It was merely a preservation requirement by another name.

Each of the “acquiescence” cases cited by the majority was, in fact, a preservation case. Yet the majority did not expressly phrase its holding in terms of a preservation requirement. Perhaps that was because to do so would expressly conflict with the Court’s precedent declining to impose a preservation requirement for an Antommarchi violationIII.

It was the Court’s obligation to protect a defendant’s fundamental right to be present at the material stages of trial. By previously declining to impose a preservation requirement for Antommarchi violations, the Court of Appeals placed the onus squarely on the courts to ensure that a defendant’s right to attend this material stage of trial was protected, and, if possible, to correct a violation of that right once it had occurred.

Criminal defendants should be on notice that unless the legislature or a future Court corrects the majority’s error, defendants, rather than the courts, are now expected to protect their Antommarchi rights, and to object to Antommarchi violations of which they are made aware in order to preserve their claims for appellate review.