People v. Marino

Appellate Division of the Supreme Court of New York

People v. Marino

249 A.D.2d 490, 671 N.Y.S.2d 673, 1998 N.Y. App. Div. LEXIS 4230

Appellate Division of the Supreme Court of the State of New York·Decided April 20, 1998·Published·Cited by 1 cases

Opinion

—Appeal by the [491] defendant from a judgment of the Supreme Court, Richmond County (Leone, J.), rendered August 7, 1996, convicting him of robbery in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, and a new trial is ordered.

Prior to the commencement of jury selection, and outside of the defendant’s presence and hearing, the defense counsel waived the defendant’s right to be present at jury voir dire sidebar conferences (see, People v Antommarchi, 80 NY2d 247). The purported waiver by the defense counsel was invalid in light of the defendant’s absence from the colloquy, at which his counsel offered the waiver on the defendant’s behalf, and the fact that there is no other evidence in the record to indicate that the defendant waived his rights knowingly, intelligently, and voluntarily (see, US Const 14th Amend; NY Const, art I, § 6; CPL 260.20; Taylor v Illinois, 484 US 400; People v Parker, 57 NY2d 136; People v Smallwood, 225 AD2d 713; People v Golden, 222 AD2d 696; cf., People v Stokes, 216 AD2d 337). Pizzuto, J. P., Joy, Friedmann and Florio, JJ., concur.

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—Appeal by the [491] defendant from a judgment of the Supreme Court, Richmond County (Leone, J.), rendered August 7, 1996, convicting him of robbery in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, and a new trial is ordered.

Prior to the commencement of jury selection, and outside of the defendant’s presence and hearing, the defense counsel waived the defendant’s right to be present at jury voir dire sidebar conferences (see, People v Antommarchi, 80 NY2d 247). The purported waiver by the defense counsel was invalid in light of the defendant’s absence from the colloquy, at which his counsel offered the waiver on the defendant’s behalf, and the fact that there is no other evidence in the record to indicate that the defendant waived his rights knowingly, intelligently, and voluntarily (see, US Const 14th Amend; NY Const, art I, § 6; CPL 260.20; Taylor v Illinois, 484 US 400; People v Parker, 57 NY2d 136; People v Smallwood, 225 AD2d 713; People v Golden, 222 AD2d 696; cf., People v Stokes, 216 AD2d 337). Pizzuto, J. P., Joy, Friedmann and Florio, JJ., concur.

People v. Marino, 249 A.D.2d 490, 671 N.Y.S.2d 673, 1998 N.Y. App. Div. LEXIS 4230 (N.Y. Ct. App. 1998).

Pincite

249 A.D.2d 490 (People v. Marino) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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