People v. Velasquez , 1 N.Y.3d 44 ( 2003 )

OPINION OF THE COURT

Chief Judge Kaye.

In these appeals, we are asked to determine whether the right of defendants to be present at sidebar conferences with prospective jurors was violated. In each case, we conclude that it was not.

During jury selection in defendant Foster’s robbery trial, as the record indicates, the court on February 4, 1999, informed prospective jurors that at the conclusion of its remarks, “I will step into the robing room with the attorneys and anyone who feels that I have raised an issue that they need to discuss with us will be invited to come in one at a time and tell us about it. . . . No one will be asked to make any public statements.” The court then invited “counsel” into the robing room, where a number of jurors were questioned about their ability to be fair and impartial. The transcript of the robing room conference does not make particular note of defendant’s presence or absence, or anyone else’s. Presence was noted only as a person spoke, and at this conference there is no indication that defendant said anything.

Defendant Velasquez was tried for depraved indifference murder and possession of a weapon. The transcript reflects that on April 17, 2000, following a bench conference held after the conclusion of the Sandoval hearing, the court stated on the record, “Okay. Bring in the jury, please. Come up, counsel. While the jury is coming in, let’s talk about logistics.” At the close of another off-the-record bench conference, defense counsel announced in open court, “Waived,” to which the court responded, “Antommarchi waived.” During jury selection, a prospective juror—ultimately seated as the foreperson—was questioned about bias at a sidebar conference outside the presence of defendant.

Each defendant claims that the transcript of his trial establishes a violation of his right to be present during the questioning of prospective jurors. The Appellate Division affirmed both convictions, with two Justices dissenting in Velasquez. We also affirm.

GPL 260.20 provides that a defendant must be personally present during the trial of an indictment. This statutory right extends to all material stages of the trial, including ancillary proceedings in which defendants’ presence could have “a substantial effect on their ability to defend against the charges” (People v Sloan, 79 NY2d 386, 392 [1992]). Defendants thus have a right to be present at sidebar and robing room conferences with prospective jurors regarding possible bias or hostility because they may give counsel input “in making discretionary choices during jury selection, based on impressions gained from seeing and hearing the juror’s responses on voir dire” (People v Roman, 88 NY2d 18, 26 [1996]; see also People v Antommarchi, 80 NY2d 247 [1992]).

Although the right to be present at sidebar questioning need not be preserved by objection (see Antommarchi, 80 NY2d at 250; People v Dokes, 79 NY2d 656, 662 [1992]), a defendant alleging an Antommarchi violation must nevertheless present an adequate record for appellate review (see People v Kinchen, 60 NY2d 772 [1983]). Moreover, although the right is fundamental, it may be waived (see People v Vargas, 88 NY2d 363, 375-376 [1996]).

People v Foster

A presumption of regularity attaches to judicial proceedings (see People v Harrison, 85 NY2d 794, 796 [1995]). This presumption may be overcome only by substantial evidence (see People v Richetti, 302 NY 290, 298 [1951]; People v Harris, 61 NY2d 9, 16 [1983]).

Defendant Foster has failed to meet his burden of coming forward with substantial evidence establishing his absence. We decline to speculate that the court reporter’s failure to note defendant’s presence at the challenged robing room conference, coupled with occasional references to his presence in other portions of the transcript, demonstrates that he must have been absent from the ancillary proceeding at issue. Without more, failure to record a defendant’s presence is insufficient to meet the defendant’s burden of rebutting the presumption of regularity.

Nor is defendant’s absence established by the trial court’s failure to apprise the prospective jurors that defendant would be present with the attorneys in the robing room. The court’s assurance that “[n]o one will be asked to make any public statements” was indicative merely of its intention that the jurors would not be forced to discuss personal matters in open court, and did not reflect a promise that no one other than the court and the attorneys would be present in the room.^* Indeed, defendant concedes that the court clerk and court reporter were present in the robing room, even though the court had not informed the jurors that they, too, would be there. And as with defendant, the presence of the court clerk is not noted in the transcript. Moreover, on at least one other occasion in which the trial court told the jurors that it was going to confer with “counsel” without also mentioning the defendant, it is beyond dispute that defendant, who spoke on the record, was in fact present.

Because defendant has failed to provide substantial record evidence of his absence, a reconstruction hearing is not required. Reconstruction hearings may be appropriate where it is clear that a proceeding took place that was not transcribed (see e.g. People v Michalek, 82 NY2d 906 [1994] [reconstruction hearing ordered where Sandoval hearing held but not transcribed]); the trial court refused to record the proceedings (see e.g. People v Davidson, 89 NY2d 881 [1996] [trial court refused to record substantial portions of voir dire proceeding]); the minutes have been lost; or there is significant ambiguity in the record. Reconstruction hearings should not be routinely ordered where, as here, the record is simply insufficient to establish facts necessary to meet the defendant’s burden of showing that he was absent from a material stage of the trial.

People v Velasquez

Contrary to defendant Velasquez’s contention, the record establishes that he validly waived his right to be present at sidebar.

In accepting an Antommarchi waiver offered by 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 (see People v Spotford, 85 NY2d 593, 598 [1995]; People v Epps, 37 NY2d 343, 350-351 [1975]). “[T]here is no requirement that the Judge conduct a pro forma inquisition in each case on the off-chance that a defendant who is adequately represented by counsel . . . may nevertheless not know what he is doing” (People v Francis, 38 NY2d 150, 154 [1975]).

Here, it is plain from the record that defense counsel informed the court at the bench that his client waived his right to be present at sidebar, and that the court then asked counsel to place this waiver on the record. At the close of this bench conference, counsel announced in open court, “Waived,” to which the court immediately responded, “Antommarchi waived.” Unless counsel had informed the court of his client’s decision during the bench conference held to discuss “logistics” (including whether and, if so, how the defendant would be brought to the bench during sidebar conferences), the court could not possibly have understood that counsel’s on-the-record statement, “Waived,” referred to Antommarchi. A reconstruction hearing is therefore not required.

While the better practice would have been to state the substance of the right being waived, nothing in the record calls into question the effectiveness of defendant’s waiver as announced by counsel, as the waiver occurred in open court in the presence of defendant (see People v Keen, 94 NY2d 533, 538 [2000]; People v Santorelli, 95 NY2d 412, 424-425 [2000]). Defendant has thus failed to rebut the presumption of regularity that the waiver was neither offered by defense counsel nor accepted by the trial court without first ascertaining that defendant voluntarily, knowingly and intelligently waived his right to be present at sidebar conferences.

Finally, while in both cases we conclude that defendants’ rights were not violated, greater attentiveness to indicating defendants’ presence, or absence, in the trial record would both protect defendants’ Antommarchi rights and avoid protracted disputes years later.

Accordingly, the order of the Appellate Division in each case should be affirmed.

* People v Maher (89 NY2d 318 [1996]) is not to the contrary. In Maher, we were asked to determine only whether the record established that those conferences at which defendants had been absent constituted the type of proceedings at which their right to be present obtained.