PEOPLE v. BESTMAN (1999)

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Leone, J.), rendered February 8, 1996, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the record reveals that he voluntarily, knowingly, and intelligently waived his right to be present during sidebar conferences with prospective jurors (see, People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95).   The defense counsel, in the presence of the defendant, told the court that the defendant waived his right to be present during the sidebar interviews (see, People v. Broadwater, 248 A.D.2d 719, 671 N.Y.S.2d 99;  People v. Stokes, 216 A.D.2d 337, 628 N.Y.S.2d 156).   Accordingly, the defendant's waiver was valid.

The record in this case established that the defendant never waived his right to be present at voir dire sidebar conferences (see, People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95;  People v. Golden, 222 A.D.2d 696, 636 N.Y.S.2d 655).

During the course of jury selection, the defense counsel stated “I want to waive the defendant's right which he has to appear at the sidebar” and the court, without further colloquy, replied, “Very well”.   The voir dire continued with numerous discussions held at the sidebar between the court and prospective jurors with respect to their potential prejudices.

The defendant's purported waiver of his right to be present at sidebar conferences was clearly inadequate.   A waiver must be made by “a voluntary knowing and intelligent choice” (People v. Vargas, 88 N.Y.2d 363, 375-376, 645 N.Y.S.2d 759, 668 N.E.2d 879).   Such a waiver may be inferred where counsel states on the record in the defendant's presence that counsel has discussed the matter with the defendant, and the defendant stands mute (see, People v. Ming Yuen, 222 A.D.2d 613, 636 N.Y.S.2d 346).   The court can also elicit a waiver from the defendant or choose to forego the use of sidebar conferences altogether (see, People v. Vargas, supra).

Here counsel made no representation that he had discussed the purported waiver with his client, nor did the court mention the issue.   There is no other evidence in the record that the defendant was ever advised of the significance of his “right to appear at the sidebar” or that “the sidebar” even involved jury selection (see, People v. Marino, 249 A.D.2d 490, 671 N.Y.S.2d 673;  cf., People v. Spruill, 212 A.D.2d 381, 622 N.Y.S.2d 264).   There is absolutely nothing in this record to indicate that the defendant understood his counsel's statement or its relevance.

In view of the foregoing, the judgment should be reversed and a new trial ordered.

MEMORANDUM BY THE COURT.

RITTER, J.P., ALTMAN and McGINITY, JJ., concur.