People v. Sands

280 A.D.2d 561, 720 N.Y.S.2d 384, 2001 N.Y. App. Div. LEXIS 1960

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 13, 2001
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dabiri, J.), rendered September 10, 1998, convicting him of robbery in the first degree, robbery in the second degree, grand larceny in the third degree, criminal possession of stolen property in the third degree, and unauthorized use of a vehicle in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the matter is remitted to the Supreme Court, Kings County, to hear and report on the issue of whether the defendant was present during the trial court’s questioning of a prospective juror, and the appeal is held in abeyance in the interim. The Supreme Court, Kings County, shall file its report with all convenient speed.

The defendant contends that he was denied his right to be present during an on-the-record sidebar questioning of a prospective juror as to her ability to weigh the evidence objectively. Since the sidebar conference concerned the prospective juror’s bias, hostility, or predisposition to believe or discredit the testimony of potential witnesses, the defendant had the right to be present at the conference (see, People v Antommarchi, 80 NY2d 247, 250; see also, People v Maher, 89 NY2d 318; People v Roman, 88 NY2d 18). The record does not disclose whether the defendant was present at this sidebar conference. Accordingly, a reconstruction hearing is necessary (see, People v Ramos, 245 AD2d 314, 315; People v Davis, 216 AD2d 314, 315).

We pass on no other issues at this juncture. Santucci, J. P., S. Miller, Florio and Schmidt, JJ., concur.