Opinion
September 1, 1994
Appeal from the Supreme Court, Bronx County (Ivan Warner, J.).
Defendant was convicted for an assault committed in concert with two other men during which the victim's imitation leather jacket was taken. Immediately after the first side-bar conference with a prospective juror concluded, defense counsel informed the court that her client wished to waive his Antommarchi (People v Antommarchi, 80 N.Y.2d 247) right to be present at any future side-bar discussions with jurors. Counsel stated that she and her client felt it was too prejudicial for defendant to approach the bench flanked by two court officers every time a prospective juror was questioned. However, the court refused to accept a blanket waiver and insisted defendant come forward to issue a separate waiver at each side-bar conference. Defense counsel argued that separate waivers defeated the point of trying to avoid undue prejudice in that defendant would still be repeatedly paraded in front of the jurors with the court officers in tow. The court affirmed its ruling, and defendant was escorted to 55 side-bar conferences during trial.
A defendant may waive his right to be present at his trial, or parts thereof, provided he does so knowingly, voluntarily, and intelligently (People v. Epps, 37 N.Y.2d 343, 349-350, cert denied 423 U.S. 999; People v. La Barbera, 274 N.Y. 339, 343-344). This Court recently validated a defendant's waiver of his right to be present at robing room voir dire of individual jurors (People v. Perez, 196 A.D.2d 781, 782-784, lv denied 82 N.Y.2d 900). A defendant is similarly entitled to waive his right to be present at all potential side-bar voir dire conferences with individual jurors.
It is well settled that an excessive display of security measures adversely affects the presumption of innocence and will not be tolerated absent a clear showing of necessity (Illinois v Allen, 397 U.S. 337, 344; People v. Mendola, 2 N.Y.2d 270; People v. Gonzalez, 115 A.D.2d 899, 901, appeal dismissed 68 N.Y.2d 995; People v. Gonzalez, 55 A.D.2d 656). Even if the security measures employed are viewed as routine, as the People argue, we cannot regard 55 instances as either brief or inadvertent (People v Harper, 47 N.Y.2d 857, 858). The evidence establishing defendant's guilt, although sufficient, is not overwhelming (People v Crimmins, 36 N.Y.2d 230) and, even if we were to accept the proposition that the error did not deprive defendant of his right to a fundamentally fair trial, harmless error analysis is inappropriate (People v. Neu, 124 A.D.2d 885, 886). We therefore conclude that the display of security in this case impermissibly impinged defendant's due process right to the presumption of innocence at trial.
Concur — Murphy, P.J., Rosenberger, Ross, Rubin and Williams, JJ.