People v. Flinn

7 N.E.3d 496, 22 N.Y.3d 599

• Court: New York Court of Appeals
• Decided: February 25, 2014
• Status: Published

Opinions

OPINION OF THE COURT

Smith, J.

We hold that defendant validly waived his right under People v Antommarchi (80 NY2d 247, 249-250 [1992]) to be present during bench conferences at which prospective jurors were questioned on voir dire.

Defendant was tried for attempted murder and other crimes. Before beginning jury selection, the trial judge announced in defendant’s hearing:

“If there are any conferences at the bench, I just remind everyone the defendant is welcome to attend them, I will leave that up to defense counsel and the defendant as to whether or not he wants to get up and attend any of those conferences.”

A few minutes later, after one prospective juror had been excused for medical reasons, defense counsel said in a bench conference, held out of defendant’s hearing:

“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.”

Voir dire proceeded, and a number of bench conferences were held at which prospective jurors’ qualifications were discussed. There is no indication in the record that defendant attended, or asked to attend, any of these conferences. Defendant was convicted, and the Appellate Division affirmed (People v Flinn, 98 AD3d 1262 [4th Dept 2012]). A Judge of this Court granted leave to appeal (20 NY3d 986 [2012]), and we now affirm.

Defendant waived his Antommarchi right both implicitly and explicitly. He did so implicitly when, after hearing the trial judge say that he was “welcome to attend” the bench conferences, he chose not to do so. And he waived it explicitly by his lawyer’s statement to the court.

The implicit waiver is not significantly different from the one we upheld in People v Williams (15 NY3d 739 [2010]). It is true that in Williams the trial court said not only that the defendant was “welcome” at sidebar conferences but also that he had “an absolute right” to attend them (id. at 740), but we think that in context the two statements convey the same message: defendant was free to attend bench conferences if he wanted to do so. This was the important point for him to understand—not whether his opportunity to attend was a right or a privilege. It is hard to imagine how his decision not to attend could have been affected if the court here had used the word “right.”

As for the explicit waiver, we have repeatedly held that a lawyer may waive the Antommarchi right of his or her client (People v Velasquez, 1 NY3d 44, 47-50 [2003]; People v Keen, 94 NY2d 533, 538-539 [2000]; see also People v Vargas, 88 NY2d 363, 376 [1996] [because sidebar presence is a statutory, not a constitutional, right, “this Court has been more flexible regarding the acceptable form of voluntary waivers by defendants and their lawyers”]). Defendant seeks to distinguish these cases on the ground that here the lawyer’s statement waiving the right was not made in defendant’s hearing. But the premise of Velasquez and Keen is that a lawyer may be trusted to explain rights to his or her client, and to report to the court the result of that discussion. If that was not our assumption in those cases, we would not have found a valid waiver; we certainly did not rely on the client’s vigilance in listening to, or his diligence in correcting, his lawyer’s misstatements. Indeed, in Velasquez, while the client did hear the lawyer’s oral waiver, it is unlikely that he understood it. The only relevant words said in open court in Velasquez were “Waived” by the lawyer and “Antommarchi waived” by the court (1 NY3d at 47).

Accordingly, the order of the Appellate Division should be affirmed.