The PEOPLE of the State of New York, Respondent, v. Andre MORIN, Appellant.
Judgment of conviction unanimously modified on the law by vacating the sentence imposed and remanding the matter to the court below for resentencing before a different judge; as so modified, affirmed.
In or about August 2000, defendant was charged with endangering the welfare of a child (Penal Law § 260.10 ), and sexual abuse in the second degree (Penal Law § 130.60 ) for allegedly touching the genitals of an 11 year old male, having said male touch his genitals, and attempting to engage the said male in sexual conversation. Following trial, defendant was acquitted of the sexual abuse charge and convicted of endangering the welfare of a child.
On appeal, defendant contends that his exclusion from sidebar conferences with prospective jurors warrants reversal and that his rights were violated when the trial court took evidentiary testimony from the complaining witness in chambers while he was not present. Clearly, the Due Process Clauses of the New York State and United States Constitutions provide defendant with the right to be present at the material stages of trial if his presence might bear a substantial relationship to his opportunity to better defend himself at trial and the stage of the criminal proceeding is critical to the outcome (see Kentucky v. Stincer, 482 U.S. 730, 745-746, 107 S.Ct. 2658, 96 L.Ed.2d 631; see also People v. Rosen, 81 N.Y.2d 237, 597 N.Y.S.2d 914, 613 N.E.2d 946; People v. Mitchell, 80 N.Y.2d 519, 526-527, 591 N.Y.S.2d 990, 606 N.E.2d 1381). New York also grants defendant the statutory right to be present at voir dire side bars (see CPL 260.20; People v. Maher, 89 N.Y.2d 318, 324, 653 N.Y.S.2d 79, 675 N.E.2d 833; People v. Favor, 82 N.Y.2d 254, 265, 604 N.Y.S.2d 494, 624 N.E.2d 631; People v. Dokes, 79 N.Y.2d 656, 662, 584 N.Y.S.2d 761, 595 N.E.2d 836).
A review of the record indicates that defendant waived his right to be present at sidebar conferences pertaining to legal issues, but did not waive his right to be present at conferences taking place in chambers or outside of the courtroom. Contrary to defendant's contention, however, the record does not indicate that defendant was not present at all of the 16 sidebar conferences that took place during jury selection, nor does it indicate that he was not present in chambers during the complainant's testimony. Defendant's absence is only clearly indicated for the two voir dire conferences that took place in the back hall on November 14, 2001. However, since issues of bias were not discussed at these conferences, defendant's statutory right to be present was not triggered (see People v. Maher, 89 N.Y.2d 318, 653 N.Y.S.2d 79, 675 N.E.2d 833). Inasmuch as defendant fails to otherwise offer substantial evidence to support his assertions that he was not present at the remaining conferences, or in chambers, he has not rebutted the presumption of regularity attached to these proceedings (see People v. Dominique, 90 N.Y.2d 880, 881, 661 N.Y.S.2d 597, 684 N.E.2d 27; People v. Richetti, 302 N.Y. 290, 97 N.E.2d 908; People v. Firrira, 258 A.D.2d 666, 685 N.Y.S.2d 787; People v. Yarbough, 229 A.D.2d 605, 646 N.Y.S.2d 353; People v. Robinson, 191 A.D.2d 523, 595 N.Y.S.2d 56; People v. Pichardo, 168 A.D.2d 577, 562 N.Y.S.2d 792), and he has not provided an adequate record for determining whether he was wrongfully excluded from a material stage of trial (see People v. Kinchen, 60 N.Y.2d 772, 469 N.Y.S.2d 680, 457 N.E.2d 786; Robinson, 191 A.D.2d at 523, 595 N.Y.S.2d 56).
In its haste to “send a message” at sentencing, the trial court did not allow defendant, nor his attorneys, to make statements on his behalf, to which objection was made. Unquestionably, defendant has the constitutional right to be represented by counsel at sentencing (see Berry v. New York, 375 U.S. 160, 84 S.Ct. 274, 11 L.Ed.2d 261; People v. Hannigan, 7 N.Y.2d 317, 197 N.Y.S.2d 152, 165 N.E.2d 172). The court's refusal to allow his attorneys to speak on his behalf denied him this right, and CPL 380.50 clearly provides that both defendant and his attorney are allowed to make statements at sentencing. Accordingly, the matter is remanded to the court below for resentencing before a different judge.