Opinion
773 KA 14-02245
10-09-2020
The PEOPLE of the State of New York, Respondent, v. Kesean R. MCKENZIE-SMITH, Defendant-Appellant.
THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., NEMOYER, CURRAN, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia, murder in the second degree ( Penal Law § 125.25 [3] ), defendant contends that the conviction is not supported by legally sufficient evidence with respect to the element of identity. We reject that contention (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Furthermore, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we likewise conclude that the verdict is not against the weight of the evidence with respect to identity (see People v. Bloodworth , 179 A.D.3d 1534, 1535, 119 N.Y.S.3d 347 [4th Dept. 2020], lv denied 35 N.Y.3d 993, 125 N.Y.S.3d 625, 149 N.E.3d 386 [2020] ; People v. Thomas , 176 A.D.3d 1639, 1640-1641, 111 N.Y.S.3d 155 [4th Dept. 2019], lv denied 34 N.Y.3d 1082, 116 N.Y.S.3d 166, 139 N.E.3d 824 [2019] ; see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
We agree with defendant, however, that his right to be present during questioning of prospective jurors regarding "bias, hostility, or predisposition to believe or discredit the testimony of potential witnesses" was violated ( People v. Antommarchi , 80 N.Y.2d 247, 250, 590 N.Y.S.2d 33, 604 N.E.2d 95 [1992], rearg denied 81 N.Y.2d 759, 594 N.Y.S.2d 720, 610 N.E.2d 393 [1992] ). At the start of jury selection, there was no discussion of defendant's right to be present at the bench during sidebar conferences with prospective jurors, nor did defendant waive that right during the first pass of jury selection. During that pass, Supreme Court excused a prospective juror for cause, and defendant's counsel exercised a peremptory challenge to another prospective juror, both of whom had approached the bench for side bar conferences with the court and counsel. After that pass, the prosecutor noted the lack of an Antommarchi waiver.
With respect to the prospective juror excused by the court for cause, it is well settled that "reversal is not required where the defendant's attorney does not exercise a choice to exclude a prospective juror, such as where a prospective juror is excused for cause" ( People v. Wilkins , 175 A.D.3d 867, 868, 107 N.Y.S.3d 521 [4th Dept. 2019], lv granted App. Div., 4th Dept., Oct. 8, 2019, motion No. KAH 13-02068). Here, although defense counsel stated that he did not oppose excusing the juror for cause, "the court had already made its determination when that statement was made, and thus ‘defendant's presence [at the conference regarding that prospective juror] could not have afforded him ... any meaningful opportunity to affect the outcome’ " ( id. , quoting People v. Roman , 88 N.Y.2d 18, 26, 643 N.Y.S.2d 10, 665 N.E.2d 1050 [1996], rearg denied 88 N.Y.2d 920, 646 N.Y.S.2d 988, 670 N.E.2d 229 [1996] ).
A second prospective juror was peremptorily excused by defendant's counsel, however, and, during a sidebar conference at which defendant was not present, that juror was questioned "to search out [her] bias, hostility or predisposition to believe or discredit the testimony of potential witnesses" ( Antommarchi , 80 N.Y.2d at 250, 590 N.Y.S.2d 33, 604 N.E.2d 95 ). Consequently, we conclude that, "absent a knowing and voluntary waiver by defendant of his right to be present at that sidebar conference, his conviction cannot stand" ( People v. McAdams , 22 A.D.3d 885, 886, 802 N.Y.S.2d 531 [3d Dept. 2005] ). The only evidence in the record concerning a waiver consists of a conversation between the court, defendant's counsel and codefendant's counsel that occurred after the prospective juror was excused, in which codefendant's counsel indicated that he had just discussed with codefendant the right to approach the bench during such conferences, and defendant's counsel merely assented. Inasmuch as the discussion was vague and prospective, and there is no indication that defendant or defendant's counsel were waiving defendant's Antommarchi rights retrospectively, that conversation is insufficient to establish that defendant waived those rights concerning the questioning of the prospective juror at issue here. We therefore reverse the judgment of conviction and grant a new trial.
We have considered defendant's remaining contentions and conclude that they lack merit, or they are academic in light of our determination.