Citation Numbers: 196 Misc. 2d 114, 763 NYS2d 705
Filed Date: 5/15/2003
Status: Precedential
Modified Date: 2/5/2022
OPINION OF THE COURT
Memorandum.
Judgment of conviction unanimously modified on the law by vacating the sentence imposed and remanding the matter to the court below for resentencing before a different judge; as so modified, affirmed.
In or about August 2000, defendant was charged with endangering the welfare of a child (Penal Law § 260.10 [1]), and sexual abuse in the second degree (Penal Law § 130.60 [2]) for allegedly touching the genitals of an 11-year-old male, having said male touch his genitals, and attempting to engage the said male in sexual conversation. Following trial, defendant was acquitted of the sexual abuse charge and convicted of endangering the welfare of a child.
On appeal, defendant contends that his exclusion from sidebar conferences with prospective jurors warrants reversal and that his rights were violated when the trial court took evidentiary testimony from the complaining witness in chambers while he was not present. Clearly, the Due Process Clauses of the New York State and United States Constitutions provide defendant with the right to be present at the material stages of trial if his presence might bear a substantial relationship to his opportunity to better defend himself at trial and the stage of the criminal proceeding is critical to the outcome (see Kentucky v Stincer, 482 US 730, 745-746 [1987]; see also People v Rosen, 81 NY2d 237 [1993]; People v Mitchell, 80 NY2d 519, 526-527 [1992]). New York also grants defendant the statutory right to be present at voir dire sidebars (see CPL 260.20; People v Maher, 89 NY2d 318, 324 [1996]; People v Favor, 82 NY2d 254, 265 [1993]; People v Dokes, 79 NY2d 656, 662 [1992]).
A review of the record indicates that defendant waived his right to be present at sidebar conferences pertaining to legal
In its haste to “send a message” at sentencing, the trial court did not allow defendant, nor his attorneys, to make statements on his behalf, to which objection was made. Unquestionably, defendant has the constitutional right to be represented by counsel at sentencing (see Berry v New York, 375 US 160 [1963]; People v Hannigan, 7 NY2d 317 [1960]). The court’s refusal to allow his attorneys to speak on his behalf denied him this right, and CPL 380.50 clearly provides that both defendant and his attorney are allowed to make statements at sentencing. Accordingly, the matter is remanded to the court below for resentencing before a different judge.
Winick, J.P., Lifson and Rudolph, JJ., concur.