THE PEOPLE &C., RESPONDENT, v. HERBERT MITCHELL, APPELLANT. / THE PEOPLE &C.,
RESPONDENT, v. MIGUEL CASIANO, A/K/A RAYMOND CASIANO, APPELLANT. / THE PEOPLE
&C., RESPONDENT, v. LEVAL CHAMBERS, APPELLANT.
80 N.Y.2d 519, 606 N.E.2d 1381, 591 N.Y.S.2d 990 (1992).
December 17, 1992
2 No. 289
1 No. 290
1 No. 291
Decided December 17, 1992
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
No. 289:
Paul Lewis, for Appellant.
Barbara D. Underwood, for Respondent.
No. 290:
William A. Loeb, for Appellant.
Peter D. Coddington, for Respondent.
No. 291:
Elizabeth J. Miller, for Appellant.
Jonathan Svetkey, for Respondent.
Nos. 289, 290 and 291:
Association of the Bar of the City of New York; and New York State
District Attorneys Association, amici curiae.
SIMONS, ACTING CHIEF JUDGE:
In People v Antommarchi (___NY2d___, dec 10/29/92, rearg denied
___NY2d___, dec today), the trial court questioned 37 of 67
prospective jurors at a sidebar, in defendant's absence, about their
subjective thoughts on a number of issues. We reversed the conviction
stating that while a "court may conduct side-bar discussions with
prospective jurors in a defendant's absence, if the questions relate
to juror qualifications such as physical impairments, family
obligations and work commitments ..., (it) may not ... explore
SNIPPETS:
THE PEOPLE &C., RESPONDENT, v. HERBERT MITCHELL, APPELLANT.
/ THE PEOPLE &C., RESPONDENT, v. MIGUEL CASIANO, A/K/A RAYMOND CASIANO, APPELLANT.
In People v Antommarchi, the trial court questioned 37 of 67 prospective jurors at a sidebar,
The issue is squarely presented because in all three cases the trial court conducted some
We conclude People v Antommarchi should be applied prospectively only and, deciding these
The order in People v Chambers should be reversed, however, because the People impermissibly
Prior to Antommarchi, trial courts routinely questioned potential jurors regarding matters
d, 167 AD2d 922, lv denied, 77 NY2d 961 (requiring preservation of right to be present); People v
Moreover, applying our recent decision in People v Dokes, we permitted defendant to
The defendant could have waived his presence, of course, but no waiver had been requested
The competing theory was applied most recently by this Court in People v Pepper where we held
If no federal constitutional principles are involved, however, the question of retroactivity
If the Antommarchi decision rests solely on state law, we may follow our own well-established
The federal constitutional right to be present is rooted in the Confrontation Clause of the
In proceedings where guilt or innocence is not being determined and the facts in the pending
We did not evaluate the facts in light of the entire record nor did we make a determination
Therefore, in the usual scenario, limited exclusion from side-bar discussions with
New York's rule on retroactivity was set forth in People v Pepper which stated the Supreme
Opinion by Acting Chief Judge Simons.
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