Christopher DiLorenzo, Bronx, for Christopher Day, defendant.
Bronx Defenders (Robin G. Steinberg and Maria Tobia of counsel), for Keith Sinclair, defendant.
Robert T. Johnson, District Attorney of Bronx County (Suzanne McElwreath of counsel), for plaintiff.
Phylis Skloot Bamberger, J.
The defendants are charged with robbery and attempted robbery
in the first, second and third degrees, grand larceny, criminal possession of a weapon in the fourth degree, criminal possession of stolen property, and criminal mischief. The charges arise from two alleged incidents, the first on April 2, 2000 at 1:00 P.M . and the second less than 12 hours later on April 3, 2000 at 12:20 A.M . This court granted pretrial hearings, including a hearing pursuant to People v Rodriguez (79 N.Y.2d 445 ), on the issue of the complainant's prior familiarity with the defendants.
Just before the complainant was called to testify on the subject of his prior familiarity with the defendants, counsel asked that the defendants be excused from the courtroom during the testimony. The court began the allocution of the defendants about their waiver of the right to be present, but in the midst of the colloquy denied the request.
Counsel made a motion for dismissal of the indictment asserting that the right of the defendants to absent themselves from the courtroom was violated when the requests were denied to have the defendants out of the courtroom during the first time the complainant testified and further asserting that, as a consequence, the reliability of the complainant's identification of the defendants was undermined.
A defendant has constitutional and statutory (CPL 260.20) rights to be present at trial " to the extent that a fair and just hearing would be thwarted by [the defendant's] absence, and to that extent only." (Snyder v Massachusetts, 291 U.S. 97, 107-108 , quoted in People v Morales, 80 N.Y.2d 450, 453-454 .) The right extends to " core segments" of the trial, including jury selection, introduction of evidence, summations and charge. (People v Rodriguez, 85 N.Y.2d 586, 590 ; People v Dokes, 79 N.Y.2d 656, 659 .) But there are exceptions and, for example, the defendant need not be present at legal argument (People v Dickerson, 87 N.Y.2d 914, 915 ), at a proceeding to determine the testimonial capacity of children (People v Morales, 80 N.Y.2d at 455), at a charge conference or at the withdrawal of a motion to controvert prior findings of competency. (People v Williams, 85 N.Y.2d 945, 947 .)
Due process also requires a defendant's presence at an ancillary proceeding whenever it would have " a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge," or the " defendant has something valuable to contribute" (People v Rodriguez, 85 N.Y.2d at 590), or a proceeding
is one involving factual matters about which the defendant has peculiar knowledge useful in advancing the defense position or rebutting the People's case. (People v Dokes, 79 N.Y.2d at 660.) Such proceedings include Ventimiglia and Sandoval hearings (People v Dokes, 79 N.Y.2d at 658, 661), and hearings on ...