438 N.Y.S.2d 242, 247, 420 N.E.2d 40 (1981).
Benn has not presented "substantial evidence" to overcome the presumption that he was present at the trial proceedings. Benn's only evidence of his absence is the court clerk's statement in the transcript that Benn was not present at the start of the session, at which only legal matters were discussed concerning the Court's proposed charge. (Tr. 451.) A criminal defendant, however, has no Constitutional or other right to be present when such matters of law are discussed. See, e.g., Larson v. Tansy, 911 F.2d 392, 395 (10th Cir. 1990); People v. Williams, 85 N.Y.2d 945, 947, 626 N.Y.S.2d 1002, 1004, 650 N.E.2d 849 (1995); People v. Velasco, 77 N.Y.2d 469, 472, 568 N.Y.S.2d 721, 722, 570 N.E.2d 1070 (1991). Benn's argument hinges on the court clerk's failure to state whether Benn reentered the courtroom when the jury did, prior to the summations. (See Tr. 455-56.) Benn maintains that since the court clerk noted his presence at other court sessions and after the lunch recess following the court's charge (Tr. 536), Benn must not have been present at the summations and jury charge because the court clerk did not so note.
The law in New York is clear, however, that a court clerk's or court reporter's failure to note a defendant's presence is insufficient to rebut the presumption of regularity. See, e.g., People v. Diaz, 212 A.D.2d 412, 622 N.Y.S.2d 686, 687 (1st Dep't 1995) (defendant's claim that Spanish interpreter not present at sentencing is denied; while transcript first indicates interpreter's presence in the latter pages, "defendant failed to rebut the presumption of regularity that the interpreter was present when the proceedings commenced and that the entry regarding the interpreter's presence was made by the stenographer belatedly"); People v. Robinson, 191 A.D.2d 523, 523, 595 N.Y.S.2d 56, 57 (2d Dep't 1993) (defendant could not overcome presumption of regularity despite the fact that Sandoval hearing minutes did not indicate whether or not he was present, and defendant offered "no additional evidence supporting his conclusory assertion that he was not present"); People v. Pichardo, 168 A.D.2d 577, 577, 562 N.Y.S.2d 792, 793 (2d Dep't 1990) ("Although during trial, the court clerk did not, on certain occasions, ministerially record that the defendant was present in the courtroom, the defendant offers no additional evidence supporting his conclusory assertion that he was absent on the days in question and has thereby failed to rebut the presumption of regularity which attached to the proceedings.").
The affidavits filed at the Court's request support the conclusion that Benn has not presented substantial evidence to overcome the presumption of regularity of the trial. Benn's trial attorney stated that he did not recall any case in which his client had been absent from part of the trial. See Gadlin Aff. P 6.) Further, the trial prosecutor stated that he remembered only one trial where the defendant was not present for summation and the charge to the jury, and it was not Benn's case. (Brennan Aff. P 3.) Finally, although this Court directed Benn to file a supplemental affidavit stating whether he was present during summation and the jury charge, Benn's affidavit did not directly state that he was not present during summation and the jury charge; his affidavit merely referred to the statements in the trial transcript. (Benn Aff. at 1.) That is not sufficient. See People v. Pacheco, 204 A.D.2d 577, 612 N.Y.S.2d 179, 180 (2d Dep't 1994) (where defense counsel and prosecution swore defendant was present when court gave supplemental instructions to jury and defendant did not testify on the issue, court found that defendant was present for the instructions). Indeed, even if Benn had clearly and unequivocally sworn that he was not present, that would not be sufficient to overcome the presumption of regularity. See cases cited on pages 13-14 above.
I conclude that Benn has failed to meet his burden to produce substantial evidence to overcome the presumption of regularity in the trial below. Had his appellate counsel raised this issue on direct appeal, there is not a reasonable probability that it would have been successful. Appellate counsel was not ineffective in failing to raise this issue. Thus, I recommend that Benn's petition for a writ of habeas corpus be denied.
FINDING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Sidney H. Stein, 500 Pearl Street, Room 2210, and to the chambers of the undersigned, 40 Centre Street, Room 540. Any requests for an extension of time for filing objections must be directed to Judge Stein. Failure to file objections may result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 115 S. Ct. 86 (1994); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825, 121 L. Ed. 2d 696 (1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
Dated: New York, New York
July 17, 1995
Andrew J. Peck
United States Magistrate Judge