The People, Respondent,v.Gunther J. Flinn, Appellant.

Brief

N.Y.Jan 14, 2014

To be argued by: Patricia L. Dziuba (15 minutes) Court of Appeals Docket No. APL 2012‐00356 Jefferson County Indictment No. 2009‐434 State of New York Court of Appeals THE PEOPLE OF THE STATE OF NEW YORK, Respondent, ‐ against ‐ GUNTHER J. FLINN, Appellant. RESPONDENT’S BRIEF CINDY F. INTSCHERT DISTRICT ATTORNEY, JEFFERSON COUNTY Attorney for Respondent 175 Arsenal Street Watertown, NY 13601 Telephone: (315) 785‐3053 Fax: (315) 785‐3371 PATRICIA L. DZIUBA Assistant District Attorney Of Counsel Date of Completion: May 23, 2013 1 RULE 500.13(a) RELATED LITIGATION STATEMENT As of May 23, 2013, there are no criminal prosecutions against Gunther J. Flinn pending in Jefferson County. There were no codefendants in this case, and the Jefferson County District Attorney’s Office is not aware of any other litigation related to the matter before this Court. 2 People v. Flinn (APL 2012-00356) RESPONDENT’S BRIEF TABLE OF CONTENTS TABLE OF AUTHORITIES……………………………………….. 3 PRELIMINARY STATEMENT…………………………………… 6 STATEMENT OF FACTS ………………………………………… 8 BACKGROUND……………………………………………………… 8 THE SECOND PROSECUTION………………………………………... 9 The September 16, 2009 Plea Conference…………………………… 9 The Trial…………………………………………………………….. 10 Jury Selection……………………………………………………… 10 The People’s Evidence…………………………………………… 11 The proof of defendant’s guilt …………………………11 The immediate medical treatment and other consequences of defendant’s vicious assault ………………………… 24 The pathologist’s concluding testimony ……………… 31 The Defense Case………………………………………………… 33 Charge, Deliberations, and Verdict………………………………. 33 Sentencing………………………………………………………… 34 THE SECOND APPEAL……………………………………………… 37 POINT I. The Defendant Effectively Waived His Right to Be Present During Voir Dire Side-Bars and a New Trial is Not Required.. 39 POINT II. The Court Did Not Sentence the Defendant Vindictively, Harshly or Excessively and a New Trial is Not Required…….. 47 CONCLUSION …………………………………………………….. 57 Table of Authorities 3 Page(s) Cases: Alabama v. Smith, 490 US 794 (1989)………………….……………. 49 Bordenkircher v. Hayes, 434 US 357 (1978)…………………………. 48 Maurer v. New York, 43 NY 1(1870)…………………………………. 39 North Carolina v. Pearce, 395 US 711(1969)………………………… 49 People ex rel. Lupo v Faye, 13 NY2d 253 (1963)……………………. 39 People v. Anommarchi, 80 NY2d 247 (1991)………………………… 39, 44 People v. Abdullah, 28 AD3d 940 (3rd Dept. 2006)…………………… 42 People v. Bailey, 258 A.D.2d 807 (3rd Dept. 1999)…………………… 56 People v. Britt, 260 AD2d 6 (1st Dept. 1999)…………………………. 53, 54 People v. Coleman, 203 AD2d 729 (3rd Dept. 1994)………………… 53 People v. Cosme, 203 AD2d 375 (2nd Dept. 1994)…………………… 54 People v. Cotter, 25 AD2d 609 (4th Dept. 1966)……………………… 48 People v. Cox, 122 AD2d 487 (3rd Dept. 1986)………………………. 55 People v. Davidson, 89 NY2d 881 (1996)……………………………. 46 People v. Davidson, 224 AD2d 354 (1st Dept. 1996)………………… 46 People v. Ellliot, 29 AD2d 731 (3rd Dept. 2002)……………………… 44 People v. Farrar, 52 NY2d 302 (1981)……………………………….. 48, 55, 56 People v. Flinn, 60 AD3d 1304 (4th Dept. 2009)……………………… 9 People v. Flinn, 98 AD3d 1262 (4th Dept. 2012)……………………… 40, 47 People v. Jenkins, 256 A.D.2d 735 (3rd Dept. 1998)…………………… 56 People v. Keen, 94 NY2d 533 (2000)………………………………….. 39, 40 People v. Lawrence, 1 AD3d 625 (3rd Dept. 2003)……………………… 42 People v. Lucious, 269 AD2d 766 (4th Dept. 2000)……………………… 41 People v. Lucious, 285 AD2d 968 (4th Dept. 2001)…………………… 41 4 People v. Mackey, 136 A.D.2d 780 (3rd Dept. 1988)…………………… 56 People v. Maher, 89 NY2d 318 (1996)………………………………… 41, 42 People v. McAdams, 22 AD3d 885 (3rd Dept. 2005)………………….. 41, 42 People v. Melendez, 71 AD3d 1166 (2nd Dept. 2010)…………………. 54 People v. Miller, 65 NY2d 502 (1985)………………………………… 49, 51, 53 People v. Min, 249 AD2d 130 (1st Dept. 1998)……………………….. 51 People v. Mitchell, 104 AD2d 689 (3rd Dept. 1984)………………….. 48 People v. Morin, 192 AD2d 791 (3rd Dept. 1993)…………………….. 54 People v. Morton, 288 AD2d 557 (3rd Dept. 2001)…………………… 55 People v. Mullen, 44 NY2d 1 (1978)…………………………………. 39 People v. Nicholson, 237 AD2d 973 (4th Dept. 1997)………………… 48 People v. Patterson, 106 AD2d 520 (2nd Dept. 1984)………………… 50 People v. Pena, 50 NY2d 400 (1980)………………………………….. 53 People v. Peterson, 126 AD2d 680 (2nd Dept. 1987)………………….. 55 People v. Richard, 65 Ad2d 595 (2nd Dept. 1978)……………………... 48 People v. Robinson, 84 AD3d 1277 (4th Dept. 2011)………………….. 54 People v. Roman, 84 AD2d 851 (2nd Dept. 1981)……………………… 48 People v. Simmons, 29 AD3d 1024 (2nd Dept. 2006)…………………… 54 People v. Sloan, 79 NY2d 386 (1992)………………………………….. 74 People v. Spotford, 85 NY2d 593 (1995)………………………………. 42 People v. Sprowal, 84 NY2d 113 (1994)………………………………. 44 People v. Van Pelt, 76 NY2d 156 (2nd Dept. 2011)…………………… 49, 51 People v. Vargas, 88 NY2d 363 (1996)……………………………….. 40 People v. Velasco, 77 NY2d 469 (1991)……………………………… 40 People v. Velasquez, 1 NY3d 44 (2003)……………………………… 42 People v. Williams, 15 NY3d 739 (2010)……………………………... 40, 42, 43 5 People v. Young, 94 NY2d 171 (1999)………………………………… 49 Snyder v. Massachusettes, 291 US 297(1934)………………………… 39 United States v. Goodwin, 457 US 368, (1982)……………………….. 48 Authorities: Criminal Procedure Law §260.20……………………………………. 39 Penal Law § 70.02(2)…………………………………………………. 56 PRELIMINARY STATEMENT 6 Defendant Gunther J. Flinn appeals from the September 28, 2012 Memorandum and Order of the Appellate Division, Fourth Department, unanimously affirming the judgment of conviction rendered against him by the Jefferson County Court (Martusewicz, J.) on November 30, 2009. People v. Flinn, 98 AD3d 1262 (4th Dept. 2012). By Certificate dated December 20, 2013, Hon. Victoria A. Graffeo, Associate Judge of this Court, granted defendant’s CPL §460.20 application for leave to appeal from the Fourth Department’s order of affirmance. 20 NY3d 986 (2012)(table). Defendant stands convicted, following a trial by jury, of • Attempted Murder in the 2nd Degree [PL §§110.00/125.25(1)] • Intimidating a Victim of Witness in the 1st Degree [PL §215.17(1)] • Intimidating a Victim of Witness in the 1st Degree [PL §215.17(2)] • Assault in the 1st Degree [PL §120.10(1)] • Assault in the 2nd Degree [PL §120.05(3)] • Obstructing Governmental Administration in the 2nd Degree [PL § 195.05] • Resisting Arrest [PL § 205.30] • Harassment in the 2nd Degree [PL § 240.26(1)] • Disorderly Conduct [PL § 240.20] 7 He presently is serving his aggregate 15 –year prison sentence at Coxsackie Correctional Facility in Coxsackie, New York. STATEMENT OF FACTS BACKGROUND Gunther Flinn had a problem with Jordan Culbertson. Flinn was angry that 8 Culbertson had caused him to be arrested in connection with an earlier incident between the two men. Four days after his arraignment on a harassment complaint, Flinn took revenge. Spying Culbertson on the sidewalk in downtown Alexandria Bay in the early morning hours of July 9, 2006, Flinn – a big, beefy man – swiftly lunged at the more dimunitive Culbertston, grabbed him by the throat, and throwing him against the side of a car for several minutes. As he held Culbertson’s throat and verbally accosted him, Culbertson’s face turned purple. Flinn then picked up Culbertson and, in the words of one stunned onlooker, “pile-drived” him onto the pavement, slamming Culbertson to the concrete headfirst. Culbertson, who initially appeared to be experiencing some kind of seizure, was unresponsive when taken away by ambulance. Culbertson was airlifted from the local hospital to SUNY Upstate University Hospital in Syracuse, where he remained for five days. Culbertson suffered from permanent brain-related injuries until his death in early February 2009. Just before the trial was to begin on May 7, 2007, defendant entered a plea of guilty to Attempted Murder in the 2nd Degree in satisfaction of the indictment. As the Court promised the defendant was sentenced on July 31, 2007 to a 6-year prison term and 5 years post-release supervision. Nearly two years later, the Appellate Division, Fourth Department exercised its interest of justice jurisdiction and reversed the judgment, on the unpreserved ground that the County Court judge’s 9 description of the kind of sentence defendant faced, were he to proceed to trial, was sufficiently coercive as to render the guilty plea involuntary. People v. Flinn, 60 AD3d 1304(4th Dept. 2009). THE SECOND PROSECUTION The September 16, 2009 Pretrial Conference On September 16, 2009, the parties convened in the County Court judge’s chambers to address pretrial issues. After the pretrial issues were addressed, the People advised the court that after defendant’s plea in 2007 and the victim’s suicide in February 2009 while the first appeal was pending, it had been discovered through an autopsy that the victim had suffered significant permanent brain damage. A 62-66. The court noted that the new information was not available to the court in 2007 when the court first committed to a potential sentence of 6 years upon a plea to Attempted Murder 2nd. A 62-66. The court reaffirmed that its agreement to six years upon a plea of guilty was based upon the belief that the victim did not have any permanent physical injuries at the time of that agreement. A 62-66. The court stated that even though it had relied upon erroneous information as to the permanency of the victim’s injuries at the time of the first plea, the court would still consider a sentence of six years if defendant wanted to accept responsibility for his actions. However, if the defendant proceeded to trial and the evidence proved that the victim’s injuries were in fact significantly more severe than the court was aware 10 of at the time of the original plea, the court stated that this information would affect any potential sentencing that the Court would consider. A 62-66. The court then indicated that such any sentencing promise would be withdrawn at the end of the week unless there was a plea by that time and that the information that the court had in 2007 may be very different from the information the court might have after trial. A 64. The court ensured that the defendant understood the sentencing parameters if he was convicted at trial of the top count and the defendant affirmed his understanding of the plea offer and sentencing parameters with a comment that it was “[n]o big deal”. A 63. The defendant did not elect to plead but proceeded to trial. The Trial Jury Selection The trial commenced on September 29, 2009. Immediately prior to jury selection a conference was held in chambers with defendant, defendant’s attorney, the Assistant District Attorneys and the Court Clerk. A 13. At that conference, while defendant was present, the court indicated that if there were any conferences at the bench, that defendant was welcome to attend them. A 13. The court stated that he would leave it up to defendant and his attorney as to whether defendant would leave his seat and attend any of the conferences. A 13. In the courtroom, at the beginning of the sidebar discussions, defendant 11 remained at counsel table and only his counsel approached. A 15. On the record, while at the bench and without his client, defendant’s counsel stated, “Mr. Flinn is remaining at counsel table. I have discussed with him that he has the right to come up here during these discussions at the bench, and he has waived that right.” A 16. Further, when counsel inquired if that would be without prejudice, the court indicated that defendant could change his mind at any time. A 16. The People’s Evidence The proof of defendant’s guilt ASHLEY SOURWINE, the victim’s fiancé, testified about the history between Culbertson and the defendant as well as the incident and the aftermath. RA 250-312. Ashley described the three prior instances when defendant and Jordan had problems that lead up to the assault on July 9, 2006. RA 250-312. In Summer 2003, defendant had grabbed the Jordan by his shirt at a party and exchanged words, but no injury was sustained. RA 254-256. In November 2004, after defendant had followed Culbertson and Sourwine there was a subsequent physical altercation where defendant got out of his car and grabbed Culbertson and stated, “I’m going to see how tough you really are.” RA 258-259. She testified that she saw defendant push Culbertson up against the car and bang his head off the car and then release him when she yelled for defendant to stop. RA 259. She felt the lump that Culbertson had on his head after that incident but indicated that he had no other problems and 12 received no treatment for that injury. RA 260. Sourwine further testified that on June 24, 2006, she and Culbertson saw the defendant again while they were at a gathering at Angela Ludlow’s apartment. RA 261. As they were headed down the stairs, the defendant ran up the stairs and confronted Culbertson again saying “remember me mother f***er?”. RA 263. The defendant grabbed Culbertson by the chest and the throat and tried to throw him down the stairs. RA 264. When Culbertson grabbed the railing to try to avoid falling down the stairs, the defendant “ripped” him off the railing, threw him on the floor and he repeatedly punched him in the ribs and the kidneys a couple of dozen times. RA 264. She recalled Jordan laying there and taking the beating while trying to cover his head. RA 264-265. After she yelled for the defendant to stop, he turned to her, got up within 2 inches of her face, laughed and said, “you don’t understand how much your boyfriend cost me”. RA 264-265. Sourwine interpreted that comment referring to the prior incident in November 2004. RA 266. She stated that defendant went upstairs toward Angela’s apartment while she and Culbertson continued down the stairs out of the building. RA.266. Although Culbertson was bruised on his sides and back and had a bloody lip, he was able to walk and talk and had no other adverse effects at that time. RA 267-268. As a result of that incident, defendant was charged with Harassment in the 2nd degree, was arraigned and entered a plea of not guilty to that charge on July 5, 13 2006. RA 267-268. Four days later the incident at bar occurred on July 9, 2006. RA 267-268. On July 9, 2006 Sourwine and Culbertson had specifically avoided going to a particular bar where the defendant was known to frequent and were chatting with friends outside in downtown Alexandria Bay. RA 270. They had intended to walk a friend, Angela, home but stopped to talk to friends in the street. RA 270. The next thing she saw was defendant running across the street from behind Jordan and grabbing Culbertson by the throat, stating, “Why do you always have to call the cops, mother f***er?” RA 271. She then saw defendant choking Culbertson, lifting him off of his feet, and noticed that his arms were flailing and his face was turning blue. RA 271. While defendant was choking Culbertson, she heard defendant say, “Go limp, mother f***er.” RA 271. After Sourwine began crying and yelling for defendant to stop, the defendant let go of Culbertson momentarily but then grabbed him again by the throat with the arm that was not in a cast and stated, “This time, I’m going to kill you”. RA 273-275. She watched as defendant lifted Culbertson off the ground about 4 feet, over defendant’s head, and slammed him head first onto the pavement. RA 273-274. She stated that she was 5”4’ and defendant lifted Jordan up over her head. RA 274. When Culbertson’s head hit the pavement, she heard a loud hollow thud. RA 274. It was a sound Sourwine testified she will never forget because it was so loud 14 that she heard it above all the people talking in the street. RA 274. She reported that she saw Culbertson’s eyes rolling into the back of his head and heard him talking gibberish in that he was speaking but saying actual words. RA 275-276. His upper body was flailing around but she never saw his legs move and was worried he might be paralyzed. RA 275. Sourwine testified that Culbertson was about five foot ten and weighed about 140 pounds. RA 275. When she heard Angela Ludlow screaming, she looked up to see defendant coming back toward Jordan’s head. RA 276. She noted that defendant lifted his leg back so she stood up and got in defendant’s face and told him to hit her if he wanted to hit somebody. RA 276-277. The defendant drew back his arm and a few guys who were standing by intervened. RA 277. Then she heard police sirens and the defendant run off. RA 277. Sourwine turned her attention back to Culbertson and recalled hearing people making comments about his condition that made her hysterical. RA 277-278. She further recalls physically becoming sick and throwing up at the scene. RA 277-278. The EMT’s took Culbertson to River Hospital and then he was transported to Syracuse. RA 278-279. She stayed with him overnight in the hospital for the next 4 nights and 5 days because she knew that defendant was not in jail and she was scared that defendant might come after Culbertson again. RA 280. Upon his release, Culbertson stayed with her at her mother’s house for about a 15 week or so, while she tended to him and assisted him in walking. RA 281. She testified that initially she had to bathe Culbertson, escorted him when he walked due to balance problems and couldn’t leave him alone because there was a risk of seizures. RA 281. Culbertson had no recollection of the events of that night and never recovered any memories of the attack. RA 282. Sourwine testified that she noticed a number of differences in Culbertson, including that his sense of humor was gone, he could no longer understand sarcasm, that he was solemn and sulky and was not interested in the same things he had been before the attack. RA 282-283. Jordan was out of work from July 9, 2006 through most of December of 2006 and had to apply for and receive disability benefits during that time to pay bills. RA 282-283. He wasn’t able to drive for a few months after the incident and had to be taken to doctor’s appointments in Syracuse. RA 284. She further testified that he completely lost his sense of smell and that he didn’t make comments about her perfume or the smell of food as he used to before he was hurt. RA 285-287. She recalled an incident with the dog and a skunk that Jordan wasn’t even aware of even though the skunk smelled so badly that it was burning her eyes. RA 285-287. Further that when they bathed their newborn son for the first time and she commented about how good the baby smelled and Culbertson began to cry. RA 285-287. The day she testified at trial happened to be their son’s second birthday. RA 285-287. 16 She further testified that they were expecting a child in the aftermath of the injury and remembered that while they were working on the baby’s room Culbertson suddenly got upset and punched holes in the wall. RA 285-287. She stated that this would happen after his injury with no warning. RA 285-287. According to her testimony, she lived with Culbertson up until the time of his death and he never sustained any other injury to his head or was treated for any other head injury aside from the one caused by defendant’s actions on July 9, 2006. RA 288. ANGELA LUDLOW testified that she knew Sourwine and had been friends with Culbertson for years and considered him one of her best friends. RA 128. On June 24, 2006, she ran into them at a local bar and had invited them over for a drink at her apartment after the bar closed. RA 128-129. They had come over and stayed about 20 minutes and shortly after they left, things got a little out of control and Ludlow kicked everyone out of her apartment. RA 130. She had locked her door and turned off the lights before leaving for a few moments. RA 130. When she went back inside, she found a male she didn’t recognize sitting hunched over in her apartment in the dark, holding onto his arm. RA 130-131. She testified that she thought he was a partier that had not left when she kicked everyone out and told him to leave. RA 131. She later learned that Culbertson had been in a scuffle with someone that night. RA 131. On July 9, 2006, Ludlow had been out at a local bar and had run into 17 Culbertson and Sourwine again. RA 132. She was talking to Sourwine when she suddenly saw the defendant grab and choke Culbertson against a car. RA 133-134. It was then that she recognized the defendant as the man that she found in her apartment holding his arm a few weeks earlier. RA 133. She further noticed that now he was wearing a cast on one of his arms. RA 133. Ludlow was standing two feet away when she heard defendant say to Culbertson to “go limp, mother f***er, go limp” and “if you want to call the cops, I will give you something to call the cops about. I will kill you”. RA 134 & 145. She also testified that while defendant held Culbertson up so his feet were off the ground, Culbertson was not fighting back. RA 134 & 145. Then she saw the defendant pick Culbertson up 3 or 4 feet and “choke slam” him to the ground. RA 134-136. When Culbertson landed on the ground he was not moving at all. RA 136. Ludlow heard him hit the ground because it was loud enough that she could hear it over everyone. RA 135. She further testified that she heard defendant laughing as he started to walk away. RA 136. Then she saw defendant come back toward Culbertson’s head and noted that defendant “acted like he was going to kick” Culbertson while he was lying on the ground. RA 136-137. When she confronted the defendant, and told him to leave Culbertson alone, she testified that defendant told her he would come back and punch her in the face. RA 137. Ludlow recalled that when she saw Culbertson after he first came home from 18 the hospital, he didn’t recognize people and was not like himself anymore. RA 139. Prior to July 9, 2006, she testified Culbertson was a happy-go-lucky kind of person and was talkative but after the attack he was quiet, depressed and tired a lot, seemed confused about things and wasn’t able to do what he had before. RA 139-141. Ludlow identified defendant as the man she saw in her apartment in June 2006 and as the person that assaulted Culbertson on July 9, 2006. RA 142. RICHARD STORY testified that he saw a guy come up and pick up another guy and pile drive him head first into the sidewalk. RA 99. Story observed that the bigger guy put the smaller guy up against a car by his neck and then picked him up and slammed him to the ground. RA 100. When the bigger guy slammed him to the ground, he lifted the smaller guy up about to his own neck level and then drove the smaller guy head first on the ground. RA 101. Story likened the action to a body slam move, head first into the ground. RA 101. After Story watched the bigger guy “pile drive” the smaller guy to the ground, the big guy walked by where Story was sitting on his steps. RA 102. Story testified that he had an extensive criminal record and listed a number of crimes in his past. RA 102-107. He testified that he had pled guilty to a number of crimes in multiple jurisdictions including, assault, DWI, alligator poaching and possession of cocaine from 2001 through 2005. RA 102-107. He also admitted to violating probation and being behind on child support. RA 107-109 & 111-113. Even 19 though Story had had numerous dealings with the law himself, when the bigger guy walked by, Story spoke to him and said, “hey, that’s F’d up, you know.” RA 107-109 & 111-113. Richard indicated that he thought the bigger guy had killed the kid. RA 107-109 & 111-113. He recalled that in response the bigger guy said that he would do it again when the smaller guy calls the cops on him again. RA 107-109 & 111-113. A number of other eye witnesses were called who corroborated what Sourwine, Ludlow and Story had testified to under oath. Derek Wagoner also heard the defendant stating that he was going to kill Culbertson as well as that he hoped Culbertson died. RA 44 & 47. Further the defendant specifically told Derek Wagoner not to help Culbertson. RA 47. Donald Wagoner heard the defendant say that he was going to keep beating Culbertson up until he stopped calling the police. RA 91. Numerous witnesses testified that the defendant had body slammed Culbertson onto the pavement. Knight, RA 10-11; Derek Wagoner, RA 46; Woodard, RA 70; Donald Wagoner, RA 90 & Kleisle RA 118 & 126. Several witnesses observed Culbertson immediately after the defendant threw him on the pavement and noticed Culbertson’s condition. Knight noticed Culbertson’s eyes rolled up and his eye lids fluttering while he was unresponsive. RA 13 & 32. Derek Wagoner heard Culbertson mumbling after he was thrown to 20 the ground. RA 46-47. Woodard testified that after the body slam, Culbertson eyes were dilated and he would not grab her hand but did move his fingers on her hands like he was playing the piano. RA 72. Most of the witnesses were able to identify the defendant in the courtroom as well. Woodard, RA 74; Donald Wagoner, RA 93 & Kleisle, RA 119. Knight was acquainted with the defendant before the attack and pointed him out as well. RA 14 – 16. Derek Wagoner pointed the defendant out for police right after the attack because he was familiar with him. RA 48. Finally, a few witnesses were acquainted with Culbertson and saw him after the attack. Derek Wagoner testified that he saw Culbertson six or seven months later and that Culbertson was slower and wasn’t talking like himself. RA 49. Further Culbertson didn’t recognize Wagoner even though they had once been very close. RA 49. Woodard had seen Culbertson after the attack and noted that he did not remember her name. RA 74. Although she had just met Culbertson the night of the attack, this struck her as odd and she stated that he wasn’t really himself. RA 74. OFFICER MULLANEY testified that he responded to the scene to find a Culbertson on the ground and a number of people standing around him. RA 152. He observed that Culbertson’s breathing was labored, that his hands were opening and closing and that he was unable to get a response from him. RA 152-153 & 163. 21 Once EMS removed Culbertson from the scene, Mullaney was taking down names and addresses of witnesses when he saw fellow officers chase the defendant down Church Street. RA 153-154. After some time, Mullaney became aware that the defendant had been apprehended. RA 154. It was only after returning to the station that Mullaney became aware that that Officer Pitts was injured in the apprehension of the defendant. RA 154. He directed Officer Pitts to seek medical attention at River Hospital in Alexandria Bay. RA 154. Due to the Culbertson’s condition, Mullaney was not able to talk to him or take a statement until eighteen days later when his fiancé brought him in for a statement. RA 156. Mullaney knew Culbertson before the attack and testified that when he met him in late July 2006, Culbertson responded much more slowly to questions and was unable to recall the actual incident. RA 156-157. Culbertson complained of the light bothering his eyes so Mullaney turned the lights off to accommodate him. RA 157. Mullaney recalled that he also had to speak in a hushed tone and noted that it took a long time to take Culbertson’s statement. RA 157. Mullaney was familiar with defendant and noted that he recognized him as the man he saw running from patrols on July 9, 2006. RA 158. He had been the officer that had taken a complaint from Culbertson against defendant for the prior incident in late June 2006. RA 160. He also completed the arrest report after the 22 events of July 9, 2006 and documented that the defendant was six foot three and weighed 245 pounds at the time of his arrest. RA 159. He was also able to identify defendant at court. RA 158. The People called several other police officers to testify about the apprehension of defendant. RA 164-224. OFFICER DELOSH arrived along with other officers, and first observed a male victim laying on the ground and a number of people pointing and yelling the name “Gunther” to the police. RA 167-168. OFFICER DEAN also heard people naming defendant as the suspect. RA 174. As a result of this OFFICER PITTS and Officer Dean attempted to detain defendant. RA 168-169 & 174. As they went to direct the defendant to the patrol car, the defendant pulled away from the officers and stated, “you are going to arrest me for that?” while the defendant pointed at the where the victim was laying. RA 169 & 215. The defendant then put both hands in the center of Dean’s chest and pushed the officer saying, “get your f***ing hands off me”. RA 186 & 216. Defendant then swung his arm with the cast on it at police in an attempt to get away and struck Pitts in the right wrist with the cast. RA 187. Pitts testified that when the defendant hit him with the cast that it “hurt pretty bad”. RA 187. The defendant laughed as he ran away from Delosh, Dean and Pitts and led them on a chase through the street of Alexandria Bay forcing officers to deploy pepper spray as well as chase 23 him on foot and by car. RA 169-172, 187-190 & 217-219. The defendant was apprehended after he was cornered but still tried to engage officers causing officers to draw their guns. RA 191-192 & 220-221. Pitts reported his injury to his supervisor and went to River Hospital for treatment where they conducted an X-ray and where he was given pain medications and ice to reduce swelling. RA 194. He testified that he was in a lot of pain and his wrist was very sore and tender and he was but de was unable to grab things with 100% of his usually ability. RA 194. Testimony revealed that Pitts’ wrist hurt and was tender for 3-4 days as a result of defendant’s actions. RA 194. Pitts was not able to lift things as he usually was able to do and was limited in what exercises he was able to do for a few days. RA 194. He reported taking pain medications for about 2 days after the incident and indicated he was prescribed 800 milligram Ibuprofen. RA 196. Although he reported not losing any time from work, he also indicated that he worked part-time and was not scheduled to work again for the next few days and reported no long-term problems with his wrist as a result of this injury. RA 204-206. The immediate medical treatment and consequences of defendant’s vicious attack CHRISTOPHER SYMENOW, a Physician’s Assistant, testified about his initial assessment of Culbertson in the emergency room, including that he was 24 unresponsive, wouldn’t open his eyes or answer questions and was speaking at times but his words were not appropriate for the context of the conversation. RA 231-232. He noted a contusion on the back of the victim’s head and likened it to a goose egg. RA 233. Once he had ruled out alcohol involvement, he attributed the victim’s behavior to the head injury and ordered a CAT scan which illustrated that there were two areas of bleeding in the Cuolbertson’s brain which warranted emergent neurological evaluation and possible treatment. RA 233-236. He decided it was necessary to transport the victim to SUNY Upstate University Hospital in Syracuse because his condition could potentially cause severe damage, impairment and even death. RA 233-236. If severe enough, the pressure building in the skull, could start pushing the brain through the base of the skull or could cause one hemisphere of the brain to intrude upon the space of the other side. RA 236-237. Jordan was exhibiting signs of swelling in one side of his brain causing that side to intrude into the space of the other side, otherwise known as midline shift. RA 237-238. Symenow testified that because there was no way to determine how much the victim’s brain would swell or had swollen the victim was critical enough to warrant transport by way of helicopter with a critical care nurse in case the victim’s condition deteriorated en route. RA 238-240. Symenow then testified that he also treated Pitts for his wrist injury. RA 240. He ordered an x-ray because the officer had had prior surgery to that wrist to insert 25 screws and to determine if there was a subsequent injury. RA 241. He diagnosed the present injury as a mild contusion to the bone and prescribed 800 milligram Ibuprofen, which is 4 times stronger than the regular dose, and advised the officer to follow-up with his doctor if symptoms did not improve. RA 240 & 249. Ashley’s mother, SUE HUNTER, also testified and corroborated portions of Ashley’s testimony. RA 312-331. Prior to July 9, 2006, Culbertson had assisted Hunter quite a bit when he helped her around the property and taught her some skills in the process. RA 314-315. She recalled he never really had a temper and he treated Ashley well. RA 315-317. In November 2004, Hunter recalled that she saw a bump on Jordan’s forehead but that she didn’t recall that injury causing him any problems aside from a headache. RA 317. Then on June 24, 2006, she testified that she saw Culbertson with a bloody lip and wearing a torn shirt after she picked he and Sourwine up from downtown. RA 318. Hunter testified that she received a phone call from Sourwine early morning on July 9, 2006, and went to meet her at the Hospital. RA 319. When Culbertson was released from the hospital, he came to stay with her and Sourwine because her home was handicapped accessible. RA 320-321. When he first come home, Culbertson would keep his eyes closed mostly, and Hunter remembered they would have to talk low and leave the lights off. RA 320-321. He couldn’t come down the stairs by himself and needed help for the first 26 10 days to 14 days. RA 322. Prior to the injury, she would cook for him and he would eat a lot and would comment on the smell of certain foods like her apple pie and Thanksgiving turkey, however, after the injury, he didn’t react at all to the smell of food and he ate a lot less. RA 322-323. He also wasn’t the same person and would respond to her very slowly. RA 322. Hunter testified that she and Culbertson worked for the same company and she knew that he never sustained any other injury there because there would have been a report. RA 324. DAVID PERRY supervised Culbertson and testified that prior to his injury Culbertson had a natural talent for his work and didn’t need a lot of supervision. RA 368. He couldn’t have asked for a better employee and noted that Culbertson was very friendly, social at work and would make eye contact when he talked to someone. RA 369-371. However when Culbertson returned to work in December 2006, he would bring Perry the wrong parts and would not engage in much conversation. RA 372-373. Perry testified that he noticed a big difference in Culbertson including that he would often lose you in the course of a conversation and noting that Culbertson was no longer social and ate alone. RA 374-375. He further noted no injuries to Culbertson in the course of his employment and stated that all injuries are required to be reported, no matter how small. RA 375-376. WILLIAM WEAVER and NATHAN ALLEN worked with and supervised Culbertson after his return to work in December 2006 and also recalled that he 27 would seem to hear instructions well but would not complete the tasks. RA 379-380 & 384-388. Weaver had to speak to Culbertson about the quality of his work approximately 30 – 35 times in the course of 6 – 7 months while Allen would have to call Culbertson to his office about every three days to address these issues. RA 382 & 386. Both men recalled that Culbertson had some issues and was not able to grasp concepts very well. RA 382 & 388. JENNIFER ALBERRY testified that she treated Culbertson during the aftermath of his brain injury from October 2006 through March 2007 when he came to her clinic. RA 336-389. She first treated him in October 2006 for balance issues and dizziness and again in December 2006, when she observed that his demeanor was flat and he was looking at the floor while speaking to her. RA 336-338. He consistently complained of anger, anxiety and problems containing his emotions and was concerned with having his mental issues under control so that he was able to care for his family. RA 362. She testified that in January 2007, Culbertson returned for treatment for increased anxiety. RA 339. Then in March 2007, she indicated Culbertson had returned again and was tearful and anxious with concerns about his anger outbursts. RA 341. She ultimately prescribed him an antidepressant to address his issues. RA 341. DAVID CARTER, MD, PHD, an expert in the field of neurosurgery, to testify about Culbertson’s brain injury and treatment in Syracuse. RA 389-458. When 28 Carter assessed Culbertson’s condition, he noted bruising and swelling in the brain and blood collection in the front of the brain, demanding that Culbertson be closely observed while he remained under some level of medical sedation. RA 396-400. Culbertson was diagnosed with a subdural hematoma, or a blood clot in the brain under the skull, as well as a subdural hemorrhage, or bleeding in the brain. RA 400-401. Carter also detected some level of midline shift, meaning that part of Culbertson’s brain had swollen enough that it was encroaching on the other side of the brain’s space in the skull. RA 401. He testified that this is very concerning because it can lead to brain damage or neurological deterioration, so Culbertson was placed in critical care due to the possibility of sudden neurologic decline or other complications of his condition. RA 402-404. He testified that usually the brain swelling increases over the first few days and then slowly subsides. RA 405. Culbertson was released after five to six days. RA 404. Culbertson was also diagnosed with a condition known as Post-Head Injury Syndrome which can result in headaches, problems with concentration and mood, dizziness and general problems with normal functioning. RA 406. Carter testified that this can often result in decreased neurological functioning and impairment including an inability to smell and taste as well as sensitivity to light and sound. RA 407-408. It can also affect motor skills and balance and can cause loss of memory and low energy. RA 408. This swelling can last for months. RA 410. Carter 29 recalled that Culbertson experienced double vision and other difficulties due to suffering from significant Post-Head Injury Syndrome, which was causing a lot of difficulty in his life. RA 412-413. He acknowledged that about 40% of patients suffering from this syndrome will have significant problems in the long-term and 10% of those will suffer from persistent problems that don’t clear up and further noted that the Culbertson fell into that 10% and was suffering from long-term persistent problems. RA 413. Carter referred Culbertson to the Concussive Clinic where he could be treated by psychiatrists as well as a neurosurgeon. RA 412 & 414. Dr. Carter treated Culbertson from July 10, 2006 through December 2006 when he released Culbertson to return to work. RA 415. Carter did not see any evidence that Culbertson had suffered any prior or other head injury based upon his review of the relevant scans and medical records. RA 457. Finally, Carter testified that Culbertson continued to suffer from the effects of Post-Head Injury Syndrome throughout the period of time during which he had treated Culbertson. RA 439. The pathologist’s concluding testimony Finally, SAMUEL LIVINGSTONE, MD, an expert in the field of Forensic Pathology, testified about his examination of Culbertson during an autopsy conducted on February 4, 2009. RA 464. Livingstone autopsy exposed a large 30 injury on the frontal cortex and frontal orbital cortex of the brain, the area that is just over and behind the sinus and eye sockets. RA 465. He also discovered necrotic brain, or dead brain tissue, on the left side of the bottom front cortex of the brain. RA 465. The injury expanded to both lobes in the area that contains the executive function of the brain, where personality and the ability to understand language and draw conclusions is located. RA 465. He testified that the tissue was reddish-brown in color and as a result was likely an old injury, occurring over 6 months to a number of years previously. RA 466. Livingstone illustrated that necrotic tissue is simply dead brain tissue that cannot regenerate and is no longer functional. RA 466. He further described the process by which this tissue actually dies and noted that once it is dead, empty pockets can form. RA 467 & 474. The reddish-brown color indicated that there had been some bleeding at the time of injury at that location in the brain. RA 468. He described the injured area containing the frontal lobes and the tips of the temporal lobes as a deep lesion and noted that Jordan had suffered tremendous trauma. RA 468-469. Further, he ruled out natural causes for the injury and any other congenital defects, including any injury consistent with alcohol consumption. RA 468-470. Livingstone testified that the injury was either caused by a direct blow from under the chin or a contrecoup injury, where the injury is initially to the front top of the head causing the brain to ricochet against the top of the skull and then collide 31 against the bottom inside of the skull. RA 471. It is caused by the backlash of the brain bouncing against the skull after a sudden impact injury. RA 471. However, he testified that it would be hard to cause an injury of that nature by a blow under the chin because of the particular angle in which the injury was located. RA 471-472. Livingstone’s expert opinion was that Culbertson’s injury was inflicted to the top of the head, causing the brain to collide against the bottom front part of the skull. RA 471. In his experience, that injury would have had to have been caused by a fall of several feet, with possible acceleration, against a hard surface to the top of Culbertson’s head. RA 472 & 486. This caused the brain to be injured on the bottom front portion of the brain as it impacted the bottom of the skull and bones of the sinus area. RA 472 & 486. He testified that the injury could not have occurred after death, but most likely occurred a year to years before death. RA 473. Further, the result of an injury like the one he saw in the Culbertson’s brain would include an immediate and abrupt change in the victim’s personality and affect. RA 474. The symptoms would include trouble understanding humor and some speech issues, difficulty discerning truth from fiction, forgetfulness, depression and lack of control over impulse activity. RA 475. Livingstone the injury that he saw in Jordan’s brain was permanent. RA 476. Upon examination of the olfactory nerves that connect the nose to the brain, Livingstone found both of Culbertson’s nerves had become necrotic and were destroyed. RA 477 & 485. 32 Thus, Culbertson’s sense of smell was completely gone and was permanent. RA 477. Similarly, since both lobes of the brain were affected, there was no chance that one side could compensate for the losses to the other making the brain damage permanent as well. RA 480. The People rested at that point. The Defense Case Defendant called several witnesses in an attempt to discredit the testimony of the People’s witnesses or to refute portions of testimony from those witnesses. However, the defense did not put forth any evidence that controverted the facts in evidence as to what happened on July 9, 2009 as put forth by the People’s witnesses. The defendant did not take the stand himself. Charge, Deliberations, and Verdict Defense counsel requested that the court charge the jury with some lessor included offenses under Assault in the 1st Degree including; Attempted Assault in the 1st Degree, Assault in the 2nd Degree, Assault in the 3rd Degree and a count of reckless Assault in the 2nd Degree. The court did charge lesser included counts of Assault in the 2nd Degree and Assault in the 3rd Degree under Assault in the 1st Degree as well as Intimidating a Victim or Witness in the 2nd Degree under the two counts of Intimidating a Victim or Witness in the 1st Degree. The jury deliberated and rendered a verdict the same day on October 6, 2009. 33 Sentencing At sentencing, the court considered the presentence memorandum filed by the defendant, statements from the victim’s mother and fiancé as read by the Assistant District Attorney. A 87. Defendant spoke on his behalf indicating that at the time “when all this started” he was in a difference place. A 86-87. He was not sure what path he was taking and after “I had the incident on the 9th”, he indicated he was incarcerated and started to realize what he had in front of him. A 87. He admitted that the “things” he did were undoubtedly wrong and claimed that he had taken what measures he could to better himself in prison. A 87. Defendant’s counsel spoke and argued that the defendant was a model prisoner while he was incarcerated in 2007 – 2009, and that his conviction upon his plea in 2007, which was later overturned, caused him to take stock in his life. A 77. Although defendant’s attorney claimed he was taking responsibility for his actions and the harm they caused, he made it clear that the defendant did not agree with the jury’s verdict. A 81. The court stated that a pre-sentence report had been prepared and reviewed noting that an updated report has also been completed as of November 2009. A 87. Contained within that report was information with regard to defendant’s history and letters written on his behalf. A 87-88. After evaluating the information contained in that report, the letters of recommendation that the court listed on the record and 34 defendant’s conviction on the charges, the Judge spoke on the record before sentencing defendant. A 88. The court noted that the defendant “arrogantly came out of the bar, and without provocation attacked” the victim in the street and that defendant “brutally chose to pile drive Jordan Culbertson’s skull into the pavement”, and that defendant’s actions “condemned” the victim to a life of “permanent, mental damage that would torment him for the rest of his short life”. A 88. The court stated that defendant had a history of bullying and confronting the victim, noting that there were “three different violent acts” that defendant perpetrated against him. A 88. “There was credible, very credible and overwhelming evidence of your seething, arrogant anger and your murderous intent, including vial and vicious words from your own mouth directed not only at the victim, but to the young ladies that tried to help Jordan as he lay “” twitching in the street”. A 88-89. The court also noted that the police were forced to chase the defendant through the streets of Alexandria Bay before they apprehended him. A 89. The court observed that the defendant showed no remorse and had not accepted any responsibility for his actions. A 89. The court further noted that defendant’s actions caused permanent brain damage to the victim, which prevented the victim from having a normal life with his fiancé, his son, and his family as well as prevented him from being able to continue as the valued employee he had been 35 before the incident. A 89-90. The court then sentenced defendant to 13 years and 5 years post-release supervision concurrently on the charges of Attempted Murder in the 2nd Degree, Assault in the 1st Degree and the two counts of Intimidating a Victim or Witness in the 1st Degree as well as a consecutive term of 2 years determinate on the Assault 2nd Degree with regard to the injury inflicted upon a police officer. A 90. Sentences of one year concurrent were pronounced on the counts of Obstructing Governmental Administration in the 2nd Degree and Resisting Arrest. A 90. The defendant was further sentenced to 15 days concurrent to all other charges on the counts of Harassment in the 2nd Degree and Disorderly Conduct. A 90. All other counts were sentenced to run concurrently and the court imposed an order for restitution and issued orders of protection for the material witnesses in the matter. A 90-91. THE SECOND APPEAL On defendant’s appeal from this trial conviction, the Appellate Division, Fourth Department, unanimously affirmed the judgment. People v. Flinn, 98 AD3d 1262 (4th Dept. 2012). It rejected his arguments for reversal and dismissal of the indictment on the ground that the evidence at trial was not legally sufficient or because the verdict was against the weight of the evidence. It further refused to order a new trial, finding 36 • no error in the trial court’s disposition of defendant’s requests that certain lesser included offense be given to the jury for its consideration • “that defendant's failure to attend sidebar conferences after being fully informed of the right to do so constitutes a valid waiver of [his] right”(98 AD3d at 1262) to be present at all material stages of the trial. The Appellate Division also left the aggregate sentence – which it deemed neither unduly harsh nor severe – undisturbed. Defendant’s contention that it represents impermissible punishment for exercising his constitutional right to trial had not been preserved as a question of law, and this time, the court declined to exercise its interest of justice jurisdiction. Defendant comes to this Court by way of The Honorable Victoria A. Graffeo’s grant of his leave application on December 20, 2012. A 3: People v. Flinn, 20 NY3d 986 (2012). 37 POINT I. Because Defendant Effectively Waived His Right To Be Present During Voir Dire Side-Bars, _________A New Trial Is Not Required._________ (Answering Appellant’s Point I) New York defendants have the fundamental right – as a matter of due process and under CPL §260.20 – to be present at material stages of trial proceedings. See generally, Snyder v Massachusetts, 291 US 297 (1934); Maurer v New York, 43 NY 1 (1870); People ex rel. Lupo v Faye, 13 NY2d 253 (1963); People v Mullen, 44 NY2d (1978). As the Court explained in People v. Antommarchi, 80 NY2d 247 (1990): [Q]uestioning during the impaneling of the jury may constitute a material stage of the trial…. A court may conduct side-bar discussions with prospective jurors in a defendant's absence if the questions relate to juror qualifications such as physical impairments, family obligations and work commitments…. 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…. – 80 NY2d at 250 [citations omitted]. The defendant’s presence at even side-bar explorations of a potential juror’s “bias, hostility, and predisposition”, however, is not an absolute mandate. The right can be waived, either explicitly [People v. Vargas, 88 NY2d 363, 375-376 38 (1996); People v. Spotford, 85 NY2d 593, 598 (1995) & People v. Velasco, 77 NY2d 469 (1991)] or constructively, by not availing himself of the right after being put on notice of the right which is his to exercise [People v. Keen, 94 NY2d 533 (2000) & People v. Williams, 15 NY3d 739, 741(2010)]. The record in this case amply supports the Appellate Division, Fourth Department’s conclusion that defendant's failure to attend sidebar conferences after being fully informed of the right to do so constitutes a valid waiver of [his] right” to be present at all material stages of the trial. People v Flinn, 98 AD3d at 1262 (4th Dept 2012). Flinn was present in chambers when the court stated that the defendant was welcome to attend any conferences at the bench during jury selection, thereby extending an invitation for Flinn to be present at discussions of issues where he had no recognized right to be, e.g., a prospective juror’s scheduling problems or inability to serve. A 13-16. Then at the beginning of jury selection, defendant’s attorney informed the court at the bench that he had discussed with his client the right to be present for bench conferences that might be had during voir dire, but that defendant was waiving this right and planned on remaining at counsel’s table. A 15-16. Additionally, counsel sought – and obtained – the court’s assurance that defendant could change his mind at any time and join in any side-bar conference. A 15-16. During the course of jury selection, defendant remained seated at counsel’s table; he 39 never expressed a wish to be privy to any voir dire side-bar conference or protested his absence from any of them. Under the totality of the circumstances presented here, the Court should turn aside defendant’s claim that the record fails to demonstrate he adequately waived his Antommarchi right. In support of his argument, defendant cites to several Appellate Division cases that are factually distinguishable and, in any event, not binding on this Court. For example, defendant points to People v. Lucious, 269 AD2d 766 (4th Dept. 2000), for the proposition that a waiver, declared by defense counsel at a side-bar conference, where the defendant himself is not at the bench, is invalid (Appellant’s Brief, p. 15). But the record before the Fourth Department in 2001 – when it actually determined Luscious’ Antommarchi claim, following its 2000 remittal for a reconstruction hearing – is far different than the one here. The only mention of any waiver was a notation by the court stenographer that defendant was not present at the conferences along with a dash and the word “waived”. People v Lucious, 285 AD2d 968, 969 (4th Dept. 2001). The Fourth Department reversed the trial conviction, holding that an Antommarchi waiver should not be inferred from a silent record. Ibid. The Lucious record, thus, stands in sharp contrast to the one in this case which establishes that (a) the court advised Flinn that his presence was welcome at any conferences, and (b) his attorney informed the court that defendant was waiving the 40 right, after discussion between counsel and his client. Ten years ago, this Court upheld counsel’s waiver, rejecting the defendant’s contention that the waiver should be deemed invalid because he himself had not given voice to it. In accepting an Antommarchi waiver offered by a defense counsel on a defendant’s behalf, a trial court need not engage the defendant in an on-the-record colloquy to ensure the requisite voluntary, knowing and intelligent nature of the waiver. – People v Velasquez, 1 NY3d 44, 49 (2003). See also, People v. Spotford, 85 NY2d 593, 598 (1995); accord, e.g., People v. Lawrence, 1 AD3d 625 (3rd Dept. 2003); People v. Abdullah, 28 AD3d 940 (3rd Dept. 2006). Nor should defendant’s invocation of People v. McAdams, 22 AD3d 885 (3rd Dept. 2005), People v. Maher, 89 NY2d 318 (1996), and People v. Williams, 15 NY3d 739, 741(2010) (Appellant’s Brief, pp. 11-13), prompt this Court to reverse and order a new trial. In McAdams, the trial court’s invitation that the defendant was welcome to attend the sidebar conferences was the only reference in the record to the Antommarchi right; there was no express waiver by either the defendant or his counsel. Similarly, no waiver was articulated on the record in Maher, and the trial court had made no attempt to explain the right to attend side-bar conferences to the defendant. Consequently, this Court concluded that when the court invited counsel to the bench, Maher had no reason to believe he was welcome to attend. Flinn, 41 however, was not left in such vacuum, for the court had extended an open invitation and, in putting the subsequent waiver on the record, Flinn’s attorney advised the court that he had discussed this with the defendant. Williams actually undercuts defendant’s claim. There, the trial court advised Williams that he had a right to attend; Williams did not go up to the bench for side-bar conferences, nor did he object to being excluded or request to participate. This Court held that where the defendant was adequately advised of his right to attend sidebar conferences at the bench, that the defendant’s failure to object or participate constituted an inferred waiver of that right. Williams, 15 NY3d at 741. No different result should occur here. Indeed, the waiver in this case is clearer than the one in Williams. Flinn was advised he was welcome to attend; expressly waived his right to through counsel; and then by way of failure to object or participate, the defendant affirmed that waiver. In short, the waiver here is more than the constructive waiver approved by the Court in Williams. Defendant argues, in the alternative, that the waiver that appears in the record relates to the defendant’s desire to be present at conferences at the bench that are not related to bias, including the court’s discussion with prospective jurors as to any medical issues that may hinder their ability to serve (Appellant’s Brief, p. 14-15). However, the defendant has no right to attend those conferences and his attorney’s presence alone is sufficient to protect his interests under those circumstances. 42 People v. Sprowal, 84 NY2d 113, 117 (1994) & People v. Sloan, 79 NY2d 386, 391 (1992). The People acknowledge that the Third Department, in People v. Ellliot, 29 AD2d 731 (3rd Dept. 2002), held that where an on-the-record waiver of attending a side-bar conference regarding a juror’s physical ability did not constitute a waiver of the Antommarchi right because there was no clarification of what specific right the defendant was waiving. Elliot, 29 AD2d at 734. But Elliott is not wholly consonant with this Court’s body of case law, and in any event, is not controlling here. There is no correlation to the case at bar because the defendant has no right to be present at conferences that entail purely legal discussion or delve into the scheduling problems that a juror may face due to personal or medical issues. Antommarchi, 80 NY2d 247, 250. In the case at bar, the fact that the defendant’s counsel further clarified that the defendant could attend those conferences which his counsel had just waived, if the defendant changed his mind, indicates to the court that this defendant was, in fact, waiving his Antommarchi rights. Not only would it be pointless to waive a right the defendant doesn’t have, but it would also be meaningless to ask for permission to resume that waived imaginary right. Further, the trial court’s indication that the defendant could change his mind and attend conferences at the bench at any time illustrates that all parties were aware that the defendant was waiving his Antommarchi right and not waiving an imaginary right 43 that he actually did not have. Thus arguing that the defendant was waiving a non-existent right is counterintuitive and only illustrates that the defendant did waive his Antommarchi right or his counsel wouldn’t have asked to revoke the waiver if the defendant later changed his mind. A 13-16. Although Flinn was not present during the questioning of all six of the prospective jurors in question in the appellant’s brief, this is of no consequence as the defendant was informed of his right to attend and had waived the right to attend those conferences through his attorney. A 13-16. Even without an express waiver by the defendant himself, the fact that he was informed of his right to attend and then did not attend or object constitutes an implied waiver. Here the defendant had been informed of his right but remained at counsel table of his own volition. A 13-16. The defendant never objected or attempted to attend any of those conferences even though his attorney had clarified that he was welcome to if he was to change his mind about waiving his right to be present. A 13-16. As such, even if this Court finds that the waiver in this case was not an express waiver because it was not reiterated in the presence of the defendant the facts certainly constitute a very strong case of a valid implied waiver. People v. Davidson, 89 NY2d 881 (1996), offers no sound basis for reversal here. The First Department’s decision makes clear that Davidson was actually physically excluded from the bench conferences even after his attorney refused to 44 waive the defendant’s right to be present, informed the court that his client would not waive the right, and then specifically requested that the defendant be permitted to attend. People v. Davidson, 224 AD2d 354, 355-356. (1st Dept. 1996). But reversal should not be ordered here, regardless of whether the jurors were seated or preempted by defense counsel. Flinn was not actually excluded; he knew of his right to attend; waived that right through his attorney; and remained at counsel table with no protests or thwarted attempts to approach. The record before the Court establishes an informed waiver of the Antommarchi right, and the judgment therefore should be affirmed. POINT II. Because the court did not sentence the defendant vindictively Nor was the sentence harsh or excessive, _________A New Trial Is Not Required._________ (Answering Appellant’s Point II) The defendant contends that the sentence imposed by the lower court after a jury trial was harsh and excessive and amounted to unconstitutional punishment for exercising his right to jury trial. The defendant was not punished for proceeding to 45 trial, as he claimed, but was sentenced in a manner that was appropriate in light of the defendant=s background and his actions underlying the crimes of which he was convicted, and in accordance with legal sentencing parameters. Further, since the defendant was sentenced in the middle range of sentencing parameters for the top count for which he was convicted, his sentence was not harsh or excessive. Primarily, the Court of Appeals does not have jurisdiction to review the issue of sentencing because the defendant did not preserve the issue at the trial court level. People v. Flinn, 98 AD3d 1262, 1262-1263 (4th Dept. 2012). Further the Fourth Department has ruled on the merits of that issue indicating that there was no evidence in the record showing that the “court was motivated by retaliation or vindictiveness.” Id. However, if this Court determines that a review is warranted, the Defendant’s sentence was appropriately within the proper parameters and there is nothing in the record to substantiate a claim that the court acted with malice. Absent extraordinary circumstances, an appellate court will not interfere with the discretion of the sentencing court. People v. Mitchell, 104 AD2d 689 (3rd Dept. 1984) & People v. Roman, 84 AD2d 851 (2nd Dept. 1981). In reviewing a sentence, the appellate court should consider all elements of the crime, the nature of the crime and the background and character of the defendant. People v. Richard, 65 Ad2d 595 (2nd Dept. 1978) & People v. Cotter, 25 AD2d 609 (4th Dept. 1966). AThe determination of an appropriate sentence requires the exercise of discretion after due 46 consideration given to, among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, ie., societal protection, rehabilitation and deterrence.@ People v. Farrar, 52 NY2d 302 (1981) & People v. Nicholson, 237 AD2d 973 (4th Dept. 1997). The appellant argues that the defendant was punished by the lower court at sentencing simply for exercising his right to proceed to a trial after his prior plea was overturned by way of an appeal. United States v. Goodwin, 457 US 368, (1982) & Bordenkircher v. Hayes, 434 US 357 (1978). However, where the defendant is free to accept a plea offer or reject it and proceed to trial, there is no intrinsic element of punishment. Bordenkircher, 434 US at 363. Appellant relies upon People v. Van Pelt that established a presumption of vindictiveness where the defendant has won an appellate reversal and then proceeded to trial and received a harsher sentence. People v. Van Pelt, 76 NY2d 156 (2nd Dept. 2011). "[W]hen a greater penalty is imposed after trial than was imposed after a prior guilty plea, the increase in sentence is not more likely than not attributable to ... vindictiveness". However, “[w]here there is no "reasonable likelihood" of vindictiveness, "the burden remains upon the defendant to prove actual vindictiveness" (Alabama v Smith, 490 US. 794 at 799-800 (1989), cited with approval in People v. Young, 94 NY2d 171 (1999). Please also see People v Miller, 65 NY2d 502 (1985). Moreover any presumption could be overcome. Van Pelt, supra. 47 The decision in that case refers to the decision in North Carolina v. Pearce, where the Supreme Court held that a sentencing court acting on new information or events subsequent to the reversal did not violate a defendant’s due process right even if issuing a more severe sentence. Id at 159 (citing North Carolina v. Pearce, 395 US 711(1969)). Yet North Carolina v. Pearce also indicated that a trial judge was not prohibited from imposing a greater or lesser sentence based upon new information as to the defendant’s mental and moral propensities and his conduct. North Carolina, 395 US at 722. In the case at bar the lower court was entitled to increase the defendant’s sentence as long as the court made a record that justified the enhanced sentence. Here, the appellant claims that he was offered six years on a plea and thus it was unjust for the court to sentence him to much more after he elected to have a trial. “The fact that a sentence imposed after trial is greater than that offered during a plea negotiation is no indication that the defendant is being punished for asserting his right to proceed to trial.” People v. Patterson, 106 AD2d 520, at 521 (2nd Dept. 1984). The Court in Patterson found the sentence imposed after trial to be harsh and excessive where there was no other rational basis for the increase in sentence after trial but for the fact that the defendant elected to have his trial. Id. Here the defendant was sentenced to a higher number of years than what was offered in the 48 plea negotiations, because there was new information about the seriousness of the victim’s injuries that was presented at trial, to which the court had no access when the plea negotiations began. During the pre-trial conference, the People laid out the evidence that would be introduced at trial including the details of the gravity of the victim’s injury as was discovered upon autopsy after the defendant’s first plea and before the subsequent pre-trial conference. A at 62-66. This was new information was not available to the court in 2007 when the first plea agreement for six years upon a plea to Attempted Murder in the 2nd Degree was entered into. A 63-64. Since the victim had subsequently passed away, proof of his injuries was established by testimony as to the forensic examination. A 63-64. The court informed the defendant just before trial, that although he had relied upon erroneous information when he agreed to a sentence of six years, that if the defendant wanted to plead guilty prior to trial, that the court would honor that agreement, even though he was now aware of new information. A 63-64. The court also informed the defendant that if the defendant proceeded to trial and the evidence proved that the victim had suffered more significant injury than what the court believed when it agreed to the six years, that any sentence after trial would be affected by the court’s hearing that evidence. A 63. 49 The court’s agreement on sentencing if the defendant plead guilty was no longer valid after that Friday, giving the defendant a few days to discuss the offer with his counsel before a decision was required. A 64. The court further cautioned the defendant that the information the court had in 2007 might be very different from what the court would become aware of after trial, to which the defendant responded that it was “[n]o big deal”. A 64. The defendant elected to refuse that offer and proceed to trial where he was convicted of Attempted Murder in the 2nd Degree and numerous other related charges. A 8, & 90-91. The lower court cannot threaten a defendant with a specific sentence if he loses at trial. People v. Min, 249 AD2d 130, at 131 (1st Dept. 1998). A defendant cannot reject a plea offer and then complain about a higher sentence imposed after trial where the same consideration for that plea offer was altered and no longer an option. Van Pelt, supra at 160(citing People v. Miller, supra). Here, the Defendant was informed that the court was still in agreement with the proposed plea offer unless the Defendant wished to proceed to trial. A 64. The court made it abundantly clear to the Defendant that at the time the court agreed to the plea offer sentence, the court was under the understanding that the victim’s injuries were not that severe. A 63. The court also explained what the sentencing parameters were for the top count of the indictment and the Defendant 50 acknowledged that he understood the same. A 63. The People submit that here, the presumption is rebutted by the specific facts of the case as evidenced in the testimony as well as the status of the court’s information at the time the court agreed to the potential sentence upon a plea versus the information the court had after trial. Here, the court properly considered all relevant factors. The lower court indicated that a pre-sentence report had been prepared and reviewed noting that an updated report has also been completed as of November 2009. A 87. Contained within that report was information with regard to the defendant=s history and letters written on his behalf. A 87-88. After evaluating the information contained in that report, the letters of recommendation that the Court listed on the record and considering that the defendant was convicted of a violent act, the Judge spoke on the record before sentencing the Defendant. A 88. Please see Miller, 65 NY2d at 507 & People v. Pena, 50 NY2d 400,412(1980). The Court then sentenced the Defendant to 13 years concurrently on the charges of Attempted Murder in the 2nd Degree and the two counts of Intimidating a Victim or Witness in the 1st Degree, with 5 years post-release supervision as well as a consecutive term of 2 years determinant on the Assault 2nd Degree with regard to the injury inflicted upon a police officer. A 90. All other counts were sentenced to run concurrently and the Court imposed an order for restitution and issued orders of 51 protection for the material witnesses in the matter. A 90-91. The aggregate sentence was 10 years more than the minimum of 5 and 10 years less than the maximum of 25 and fell exactly in the middle of the sentencing parameters. It is permissible for the court to advise the defendant of a reasonable assessment of his sentencing prospects if he is convicted at trial and doing so does not exert any undue pressure on the defendant. People v. Britt, 260 AD2d 6, at 13 (1st Dept. 1999). The People submit that the severity of the victim’s injuries is an appropriate consideration of the court when assessing sentencing of a defendant. Id. Likewise, informing a defendant that consecutive sentencing is legally permissible upon conviction is not unduly coercive. People v. Coleman, 203 AD2d 729, at 730 (3rd Dept. 1994). The Defendant argued that he was harshly sentenced because he got a higher sentence than what was promised to him if he were to plead. However, there is no expectation that a defendant will get the same sentencing he had on the table before his trial, after trial when the court has heard all the evidence and formed a more complete perspective on the defendant’s crime. People v. Robinson, 84 AD3d 1277, 1277-1278 (4th Dept. 2011) & People v. Morin, 192 AD2d 791 (3rd Dept. 1993). In Simmons and Cosme, the Court reduced the defendants’ sentences because they were offered in the vicinity of 8years upon a plea but later sentenced to 52 the maximum of 25 to life upon conviction after trial. People v. Simmons, 29 AD3d 1024, 1025 (2nd Dept. 2006) and People v. Cosme, 203 AD2d 375, at 376 (2nd Dept. 1994). In the case at bar, the court did not sentence the Defendant to the maximum but chose a sentence that fell squarely between the minimum and maximum. A 90-91. Similar to the case at bar, the defendant in Melendez was offered a sentence of 5 years upon a plea and later sentenced to 15 after trial on a conviction for Criminal Possession of a Weapon in the 2nd Degree. People v. Melendez, 71 AD3d 1166, 1167 (2nd Dept. 2010). The People submit that the appellate court did not disturb the Melendez sentence because it was not harsh or excessive. Id. The People submit further that the Defendant’s case is distinguishable from a number of cases where the court’s sentence was determined to be harsh or excessive. Please see People v. Cox, 122 AD2d 487, at 489 (3rd Dept. 1986) (where the defendant was promised probation if he pled but was later sentenced to 4 to 12 years and 2 1/3 to 7 consecutively based only upon the fact that there was additional expenses because he took the matter to trial); People v. Peterson, 126 AD2d 680 (2nd Dept. 1987) (where defendant was impermissibly penalized for going to trial and was sentenced to 8 1/3 to 25 years consecutively on two convictions for no other reason than that he wanted a trial) & People v. Morton, 288 AD2d 557, at 558-559 (3rd Dept. 2001) 53 (where the defendant had been offered 2 to 4 on a plea but later penalized when sentenced to 12 ½ to 25 after trial). In each of these cases, the lower court either made no record of an appropriate rationale for the discrepancy or the lower court was clearly penalizing the defendant for taking his chances at trial. In the case at bar, the Defendant was abundantly put on notice that his sentencing after trial might be very different based upon new information that the court did not have at the time of the original plea offer. A 63-64. Finally, the Defendant claims that his sentence was harsh and excessive. In People v. Farrar, the Court sentenced the defendant per a plea agreement noting that it felt as though it had no choice but to sentence the defendant according to the agreement even though it felt that the agreed sentence was too harsh. Farrar, 52 NY2d at 305 (1981). The Court of Appeals remitted the matter because the lower court had relinquished control of sentencing to the People improperly. No such problem occurred here. Moreover, contrary to common belief the defendant=s age and lack of criminal record, alone, does not warrant a reduction in his sentence. People v. Mackey, 136 A.D.2d 780 (3rd Dept. 1988) (stating that defendant did not present extraordinary circumstances that would require a sentence reduction even though he was young and had no criminal record). 54 In this case, the court sentenced the defendant to a valid term of imprisonment for a Class B violent felony. Penal Law § 70.02(2); People v. Jenkins, 256 A.D.2d 735, 680 (3rd Dept. 1998) (sentence imposed was not harsh or excessive because it was within the statutory range); People v. Bailey, 258 A.D.2d 807 (3rd Dept. 1999) (sentence not harsh or excessive where within statutory range and there is no showing of exceptional circumstances or abuse of discretion). The Defendant was also sentenced to a consecutive 2 year sentence due to the fact that he was convicted of Assault in the 2nd Degree for his assault on Officer Pitts in the course of his resisting arrest. A 90. The People submit that this was proper and that the Court should not disturb the sentence. Accordingly, the People submit that the conviction and sentencing should remain undisturbed and the Appellant=s appeal as to this issue should be denied. Conclusion Based upon the foregoing, it is submitted that the Appellant voluntarily waived his Antommarchi right by express waiver and then affirmed his express waiver by way of failure to object or participate. Therefore his right to be present at material stages of the proceedings was not violated. Further it is submitted that the defendant=s sentence was not harsh or 55 excessive but was appropriate in light of the specific circumstances of the evidence in the case. Therefore, the Appellant=s appeal should be denied in all respects. Respectfully submitted, Cindy F. Intschert, Esq. Jefferson County District Attorney Patricia L. Dziuba, Esq., of counsel Senior Assistant District Attorney Jefferson County District Attorney=s Office 175 Arsenal Street, 7th Floor Watertown, New York 13601 (315) 785-3053