From Casetext: Smarter Legal Research

People v. Allen

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 30, 2002
300 A.D.2d 1098 (N.Y. App. Div. 2002)

Opinion

KA 00-02737

December 30, 2002.

Appeal from a judgment of Monroe County Court (Geraci, Jr., J.), entered October 6, 2000, convicting defendant after a jury trial of criminal sale of a controlled substance in the third degree.

EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (SHIRLEY A. GORMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.

HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (AMY I. MOLLOY OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

PRESENT: PIGOTT, JR., P.J., GREEN, HAYES, SCUDDER, AND LAWTON, JJ.


MEMORANDUM AND ORDER

It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Monroe County Court for further proceedings in accordance with the following Memorandum:

Defendant appeals from a judgment convicting him after a jury trial of criminal sale of a controlled substance in the third degree (Penal Law § 220.39). Defendant contends that he was absent from sidebar discussions with 10 prospective jurors and thus was deprived of his right to be present at all material stages of the trial ( see generally People v. Antommarchi, 80 N.Y.2d 247, rearg denied 81 N.Y.2d 759). We agree with defendant that he had the right to be present during at least some of those sidebar discussions based on their subject matter ( see id. at 250) and that, if he was absent therefrom, the error would not be harmless if the prospective jurors at issue were peremptorily challenged by defense counsel, sworn as jurors, or excused by consent of defense counsel ( see People v. Davidson, 89 N.Y.2d 881, 883). Because the record is silent with respect to whether defendant was present for those discussions ( see People v. McCullough, 248 A.D.2d 938) or affirmatively waived his right to be present ( see People v. Marzug, 270 A.D.2d 945), we hold the case, reserve decision, and remit the matter to Monroe County Court for a reconstruction hearing to determine those issues. The court should further determine at the reconstruction hearing whether, as the People contend, three of the prospective jurors at issue were excused for cause, in which case defendant's presence during sidebar discussions concerning those prospective jurors would not have been required.


Summaries of

People v. Allen

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 30, 2002
300 A.D.2d 1098 (N.Y. App. Div. 2002)
Case details for

People v. Allen

Case Details

Full title:PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT, v. THEODORE ALLEN…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Dec 30, 2002

Citations

300 A.D.2d 1098 (N.Y. App. Div. 2002)
751 N.Y.S.2d 895

Citing Cases

People v. Wilkins

Because CPL 270.25(3) was being followed at the time, I further conclude that the failure of defendant's…

People v. Wilkins

25 (3) was being followed at the time, I further conclude that the failure of defendant's defense counsel to…