The People, Respondent,v.Gunther J. Flinn, Appellant.BriefN.Y.January 14, 2014 Court of Appeals FOR THE STATE OF NEW YORK ________________________________ THE PEOPLE OF THE STATE OF NEW YORK Respondent, -versus- GUNTHER J. FLINN, Defendant-Appellant. _________________________________ Jefferson County Indictment No., 2006-434 Reply Brief for the Defendant-Appellant MULDOON & GETZ Martin P. McCarthy, II, of counsel Attorneys for Defendant-Appellant 144 Exchange Boulevard, Suite 402 Rochester, New York 14614 (585) 262-5130 Brief completed June 7, 2013 TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Point 1 The defendant’s right to be present at all material stages of the proceedings was violated when no express or implied waiver of his right to attend bench conferences occurred . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Point 2 The defendant was unconstitutionally punished for exercising his right to a trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 -i- TABLE OF AUTHORITIES Cases Johnson v Zerbst, 304 US 458, 464–465 (1938) . . . . . . . . . . . . . . . . . . . . . . . 2, 12 People v Abdullah, 28 AD3d 940 (3d Dept 2006) . . . . . . . . . . . . . . . . . . . . . . . 10 People v Ahmed, 66 NY2d 307 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 People v Antommarchi, 80 NY2d 247 (1992) . . . . . . . . . . . . . . . . . . . . . . . passim People v Cahill, 2 NY3d 14 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 People v Davis, 75 NY2d 517 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 People v Elliot, 299 AD2d 731 (3d Dept 2002) . . . . . . . . . . . . . . . . . . . . . . . . . 11 People v Esajerre, 35 NY2d 463 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 People v Flinn, 98 AD3d 1262 (4th Dept 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . 2 People v Floyd, 21NY3d 892 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 People v Ford, 279 AD2d 588 (2d Dept 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 10 People v Gajadhar, 9 NY3d 438 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 People v Gillian, 8 NY3d 85 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 People v Hansen, 95 NY2d 227 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 People v Henriquez, 3 NY3d 210 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 People v Jackson, 52 AD3d 1052 (3d Dept 2008) . . . . . . . . . . . . . . . . . . . . . . . . . 5 People v Keen, 94 NY2d 533 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 People v Lee, 58 NY2d 491 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 People v Maher, 89 NY2d 318 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 People v McAdams, 22 AD3d 885 (3d Dept 2005) . . . . . . . . . . . . . . . . . . . . . . . 1 People v Mehmedi, 69 NY2d 759 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 People v Mitchell, 80 NY2d 519 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 -ii- People v Moyett, 7 NY3d 892 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 People v Parker, 57 NY2d 136 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 People v Parsons, 13 AD3d 1099 (4th Dept 2004) . . . . . . . . . . . . . . . . . . . . . . . 10 People v Prescott, 66 NY2d 216 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 People v Santana, 247 AD2d 201 (1st Dept 1998) . . . . . . . . . . . . . . . . . . . . . . . 10 People v Seaberg, 74 NY2d 1, 11 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 People v Vargas, 88 NY2d 363 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9 People v Velasquez, 1 NY3d 44 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 7,8, 9 People v Williams, 15 NY3d 739 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5 People v Yeldon, 251 AD2d 1047 (4th Dept 1998) . . . . . . . . . . . . . . . . . . . . . . . . 5 Werking v Amity Estates, 2 NY2d 43 (1956) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Statutes and Codes Criminal Procedure Law § 260.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 § 310.30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 § 470.05(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Secondary Authorities Black’s Law Dictionary (9th Ed. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Preiser, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 260.20) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 -iii- ARGUMENT Point 1 Defendant’s right to be present at all material stages of the proceedings was violated when no express or implied waiver of his right to attend bench conferences occurred At defendant’s trial, the court conducted a large number of bench conferences concerning juror bias outside of the presence of defendant. Six jurors, who were questioned outside defendant's presence, were either peremptorily challenged by the defense or else became seated jurors. In his main brief, defendant argued that he neither implicitly nor explicitly waived his Antommarchi right to be present at bench conferences. No implicit waiver occurred because the trial court’s general invitation to attend bench conferences “did not sufficiently articulate the substance of the Antommarchi right”(People v McAdams, 22 AD3d 885, 886 (3d Dept 2005)). Trial counsel’s purported waiver was likewise invalid because it occurred outside the presence of defendant and was never placed on the record in his presence (cf People v Velasquez 1 NY3d 44 (2003)). In its responding brief, the prosecution argues that the Appellate Division correctly decided that “defendant’s failure to attend sidebar -1- conferences after being fully informed of the right to do so constitutes a valid waiver of his right to be present” (Respondent’s brief at p. 40, quoting People v Flinn, 98 AD3d 1262 (4th Dept 2012)). A. The concept of waiver The concept of waiver connotes “the intentional relinquishment or abandonment of a known right” (People v Ahmed, 66 NY2d 307, 311 (1985) citing Johnson v Zerbst, 304 US 458, 464–465 (1938)). In People v Gajadhar, 9 NY3d 438, 448 (2007), this Court, in recognizing that a defendant may waive his right to deliberations by less than twelve jurors, is also free to waive other fundamental rights, including: the right to confront accusers (see, e.g. People v Hansen, 95 NY2d 227, 230 (2000)); the right to counsel (see, e.g. People v Gillian, 8 NY3d 85, 88 (2006)); the privilege against self-incrimination (see e.g. People v Lee, 58 NY2d 491, 494, (1983)); the right to testify and to present a defense (see e.g. People v Henriquez, 3 NY3d 210, 217 (2004) ); the right to be free from unreasonable searches and seizures ( see generally People v Esajerre, 35 NY2d 463, 467 (1974)); and the right to be present during trial proceedings (see e.g. People v Velasquez, 1 NY3d 44, 48 (2003)). -2- Like waiver of any fundamental right, a defendant’s waiver of the right to be present at bench conferences must be “voluntary, knowing and intelligent” (People v Vargas, 88 NY2d 363, 375-376 (1996)). In discussing a defendant’s right to be present at trial, this Court held: 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 at trial and the consequences of failing to appear for trial (People v Parker, 57 NY2d 136, 141 (1982)). Whether a waiver occurs is dependent on whether the right is adequately explained, whether a defendant understood that right, and whether by words or deeds defendant manifested his intent to forego that right. Waiver will not be found if there is an inadequate explanation of the right to be waived (see, e.g. People v Moyett, 7 NY3d 892 (2006)). B. No implied waiver occurred In arguing that an implied waiver occurred, the prosecution relies upon the trial court’s general invitation to attend bench conferences as properly articulating defendant’s right to be present during bench conferences. -3- Therefore, the question is whether the trial court’s informing defendant that “if there are any conferences at the bench, I just remind everyone the defendant is welcome to attend them” adequately explained defendant’s right to attend bench conferences. In his main brief, defendant contrasted the general invitation to attend bench conferences with this Court’s decision in People v Williams, 15 NY3d 739 (2010)), in which the trial court stated “if we ever have any sidebars or if at any time I'm talking to both of the attorneys, you have an absolute right to be present at that time” (People v Williams, 15 NY3d at 740). Although the court’s statement in Williams explained a right broader than Antommarchi, the fact that the court explained the ability for defendant to attend bench conferences as a right was sufficient. In contrast to Williams, the trial court here never used the word “right” nor any of its synonyms in its general invitation to defendant to attend bench conferences. Indeed the term “right” is defined as “a power, privilege, or immunity secured to a person by law” (Black’s Law Dictionary, 1489 (9th Ed. 2009)). In cases in which an implied waiver was found, the trial court had -4- explained to defendants that they had the right to attend bench conferences (see, e.g. People v Jackson, 52 AD3d 1052 (3d Dept 2008) (defendant waived his right to attend conferences when he did not attend conferences after being informed he had “the absolute right” to do so); People v Yeldon, 251 AD2d 1047 (4th Dept 1998) (by attending one bench conference after being informed of his right to do so, defendant waived his right to be present at later conferences when he failed to attend them)). The court here never told defendant he had “the right” – let alone “the absolute right” – to attend bench conferences. All that was done by the court was to extend an invitation to attend bench conferences. In People v Williams, the trial court not only informed defendant he had “the absolute right” to attend bench conferences, it reminded defendant of right to be present during conferences regarding juror bias (People v Williams, 15 NY3d at 740).1 In contrast here, the trial court informed defendant he had “the absolute right” 1In Williams, there were six robing room conferences in total. After the second conference, the trial judge reminded defendant of his right to attend conferences, asked defendant whether he discussed his attendance at conferences with his attorney and defendant responded “Yes.” Thereafter, defendant attended two subsequent robing room conferences (see People v Williams, 2010 WL 2929518 at *5-6 [Respondent’s Brief]). -5- to attend bench conferences, never reminded defendant of that right and never asked defendant whether he discussed his right to be present with his attorney. It must also be remembered that here, after the trial court’s initial general invitation to defendant , the court’s invitation for conferences on juror biases was extended only to the attorneys (see People v Maher, 89 NY2d 318, 322 (1996) (defendant’s Antommarchi rights were violated and defendant was improperly excluded when court instructed jurors that if there were an issue of bias, the juror could “come up to the bench where you can explain to me here in the presence of the two attorneys”)) [A 17-39, 48-60]. In order to be effective, a waiver “must not only be voluntary but also knowing and intelligent” (People v Seaberg, 74 NY2d 1, 11 (1989)). Given that the trial court never informed defendant he had “the right” to attend bench conferences on juror bias, it cannot be said waiver occurred here since waiver is the “intentional relinquishment of a known right with both knowledge of its existence and intention to relinquish it” (Werking v Amity Estates, 2 NY2d 43, 52 (1956)). -6- C. Any express waiver made by trial counsel was invalid After the court extended the invitation to defendant to attend bench conferences, but, as discussed above, never explained his right to attend bench conferences regarding juror bias, a bench conference occurred and defendant was not present. The bench conference concerned a juror who could not serve for medical reasons. Outside the presence of defendant, the following exchange took place: [defense counsel] Your Honor, may I just put one thing on the record. 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. [judge] All right. Thank you. [defense counsel] I assume that would be without prejudice to accompany us? [judge] He can change his mind any time [A 16]. Any waiver was not subsequently placed on the record. The respondent argues that waiver occurred in this case and, quoting People v Velasquez, 1 NY3d at 49, argues that “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” -7- (Respondent’s brief at p. 42). As discussed in the main brief, this Court has held that an express waiver can be accomplished through the defendant’s attorney (People v Keen, 94 NY2d 533, 538-539 (2000) and can even be accomplished outside defendant’s presence, so long as the waiver is then put on the record (People v Velasquez, 1 NY3d at 49) (Appellant’s brief at pp. 10-11, 15-16). The question on appeal is not whether an Antommarchi waiver may be made through an attorney, as Keen has settled that issue. And unless the Court wishes to reconsider Velasquez, the question here is whether a waiver offered by an attorney outside the presence of the defendant is effective when the waiver is not subsequently put on the record in the defendant’s presence. When it comes to an Antommarchi waiver, the Court has yet to address the question. In People v Mehmedi, 69 NY2d 759 (1987), the Court addressed a defendant’s absence during the handling of a jury note. Like CPL § 260.20, which requires that a defendant be present during his trial, CPL § 310.30 mandates the presence of a defendant when a deliberating jury requests -8- additional instructions. In Mehmedi, the jury requested additional instructions and defense counsel consented to the court providing those instructions in the absence of defendant. The Court reversed the defendant’s conviction because trial counsel’s consent to the procedure does not constitute a waiver of defendant’s right under CPL § 310.30 to be present (People v Mehmedi, 69 NY2d at 760). In the Antommarchi context, People v Velasquez (1NY3d 44) represents the outer limit of an attorney waiver. In Velasquez, trial counsel waived the defendant’s Antommarchi right at the bench and outside the presence of the defendant. The trial court then required the waiver be placed on the record and, in the defendant’s presence, announced “Antommarchi waived.” After Velasquez, the Court again held that a counsel’s Antommarchi waiver was effective if the waiver was subsequently placed on the record in the presence of defendant (People v Cahill, 2 NY3d 14, 55-56 (2003)). A waiver is required to be “voluntary, knowing and intelligent” (People v Vargas, 88 NY2d at 375-376). Therefore, it stands to reason, a posteriori, that any waiver that occurs outside of defendant’s presence and which was not -9- subsequently placed on the record in his presence will never be a knowing waiver by the defendant because if the fact that his attorney waived his Antommarchi right, the defendant will have never known it occurred. In cases where the defendant’s attorney waived his Antommarchi rights in his presence, the Appellate Divisions have consistently found waiver has occurred (see e.g. People v Abdullah, 28 AD3d 940 (3d Dept 2006); People v Parsons, 13 AD3d 1099 (4th Dept 2004); People v Ford, 279 AD2d 588 (2d Dept 2001); People v Santana, 247 AD2d 201 (1st Dept 1998)). When an Antommarchi waiver by an attorney occurs in the defendant’s presence, such waiver is at least knowing (even if it isn’t intelligent and/or voluntary) because defendant cannot claim he was unaware that the waiver had occurred. Any express waiver argument also assumes for the sake of argument that defense counsel’s statement — “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” — made during a bench conference regarding juror’s medical reasons for not serving on the jury, constituted a waiver of defendant’s Antommarchi rights. -10- The defendant argues in his main brief that trial counsel’s statement must be examined in context and the words used must be given effect. Specifically, since trial counsel referred to “these discussions at the bench,” which happened to be bench conferences on medical excuses, any “waiver” would only consist of defendant’s attendance at medical excuses bench conferences (see People v Elliot, 299 AD2d 731, 734 (3d Dept 2002) (trial’s waiver of the defendant’s “right to be present at sidebar legal discussions” was not an Antommarchi waiver)). In response, the prosecution argues that trial counsel’s focus on making the waiver “without prejudice” demonstrates that trial counsel was actually waiving defendant’s Antommarchi rights: 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 that he actually did not have. Thus arguing that the defendant was waiving a non-existent right is -11- 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 (Respondent's brief at pp. 44-45). When it comes to the waiver of fundamental rights, “courts indulge every reasonable presumption against waiver” (Johnson v Zerbst, 304 US at 464); see also People v Davis, 75 NY2d 517, 523 (1990)). The prosecution, in seeking to find waiver in the words of trial counsel are left only with the words of trial counsel. It is reasonable to assume that had counsel intended on waiving defendant’s Antommarchi rights, he would have said the word “Antommarchi” when waiving defendant’s right to attend “these discussions at the bench.” Trial counsel’s use of the phrase “these discussions at the bench” must also be considered in determining what, if anything, was being waived by trial counsel’s statement. The adjective “these” modifies the noun “conferences” and given the absence of the word Antommarchi, the phrase “these discussions at the bench” may have been a contradistinction, distinguishing medical excuse conferences from juror bias conferences. After -12- all, if trial counsel truly meant to waive defendant’s right to attend all bench conferences, then there was no need to use the qualifying word “these.” Conclusion In People v Antommarchi, held that the trial court may not “explore prospective jurors' backgrounds and their ability to weigh the evidence objectively unless defendant is present" (People v Antommarchi, 80 NY2d 247, 250 (1992)). The defendant’s conviction should be reversed because in this case, no waiver occurred, either express nor implied. In order to reverse defendant’s conviction, the Court need not articulate a new rule for Antommarchi waivers. However, given that the trial court in this case adheres to the practice of actively soliciting juror reservations and biases at bench conferences, a practice the Court condemned(see People v Mitchell, 80 NY2d 519, 525 (1992); Preiser, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 260.20), the Court might wish to consider requiring trial courts who engage in such practices to also engage in actively eliciting Antommarchi waivers. -13- Point 2 The defendant was unconstitutionally punished for exercising his right to a trial In his main brief, defendant argued that he was unconstitutionally punished for exercising his right to a trial. In its responding brief, the prosecution argues, relying upon the Fourth Department’s decision, that defendant’s argument was unpreserved (Respondent’s brief at p. 47). The prosecution’s brief then goes on to argue the merits. The doctrine of preservation “concerns whether an issue has been properly brought to the attention of the Trial Judge and opposing attorneys” (People v Prescott, 66 NY2d 216, 219 n.1 (1985)). Indeed, CPL § 470.05(2) provides that: a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court's ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered. -14- The Court recently addressed preservation in People v Floyd, 21NY3d 892 (2013). Floyd was a courtroom closure case and in that case trial counsel informed the court that defendant’s mother was waiting outside the courtroom and was unable to find a seat because the courtroom was full with the venire for voir dire. Trial counsel then stated that defendant’s mother has an absolute right to be present. When the judge informed counsel that the mother would have to wait outside until there was room, counsel simply said “right.” The Appellate Division affirmed the conviction and held that defendant failed to preserve his claim. This Court reversed, finding the error had been preserved holding that trial counsel “unquestionably apprised the trial judge of the constitutional rights at issue” (People v Floyd, 21 NY3d at 894). Here, trial counsel argued not for the minimum sentence (which would have been 5 years determinate), but rather for the sentence originally offered should the defendant plead guilty (6 years determinate). Trial counsel cited both plea offers and expressly requested that the trial court not punish defendant for exercising his right to trial. Trial counsel’s statement clearly -15- apprised the trial court of defendant’s due process constitutional right to not be punished for exercising his right to a trial. Therefore, it is respectfully submitted that the defendant’s claim was preserved and may be addressed by this court. With respect to his claim that he was unconstitutionally punished for exercising his right to trial, the totality of the factors present demonstrate a vindictiveness on the part of the trial judge, including (1) an appellate reversal and the judge’s gratuitous comments regarding defendant’s prior appeal; (2) disparity between the offered sentence after a plea and the imposed sentence after a trial; (3) the consecutive sentences that were imposed; and (4) his statements that defendant “step up before trial and accept his responsibility.” Based upon the foregoing, the defendant respectfully requests that the Court reduce the punitive sentence imposed in this case. -16- CONCLUSION For the reasons stated, the defendant’s right to be present at all material proceedings was violated, mandating reversal of the conviction. In the alternative, the Court should vacate the sentence imposed in this case. Dated: June 7, 2013 Respectfully submitted, MULDOON & GETZ By: ________________________ Martin P. McCarthy, II, Esq. Attorneys for Defendant-Appellant 144 Exchange Boulevard Suite 402 Rochester, New York 14614 (585) 262-5130 -17-