SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS Appellate Term, Second Department
October 31, 2011
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
KEVIN J. PRENDERGAST, APPELLANT.
Consolidated appeal from a judgment of the District Court of Suffolk County, First District (Chris Ann Kelley, J.), rendered November 25, 2009, and, by permission, from an order of the same court dated March 3, 2010.
People v Prendergast (Kevin)
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on October 31, 2011
PRESENT: MOLIA, J.P., TANENBAUM and LaCAVA, JJ
The judgment convicted defendant, after a non-jury trial, of sexual abuse in the third degree. The order denied defendant's motion, pursuant to CPL 440.10, to vacate the judgment of conviction.
ORDERED that the judgment of conviction is reversed, on the law, and the matter is remitted to the District Court for a new trial.
ORDERED that the appeal from the order denying defendant's motion to vacate the judgment of conviction is dismissed as academic.
Defendant was charged with sexual abuse in the third degree (Penal Law § 130.55). Prior to the start of a non-jury trial, the People informed the District Court that they were seeking to introduce evidence of prior bad acts (People v Ventimigilia, 52 NY2d 350 ). The court considered the People's application at the bench outside of defendant's presence. Following the sidebar conference, the People were allowed to elicit direct evidence as to defendant's prior bad acts relating to the complainant.
The Due Process Clauses of the Federal and New York State
Constitutions provide a defendant with the right to be present at all
material stages of trial. A defendant's presence, however, is only
required if it 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 US 730, 745-746 ; see also People v Spotford, 85
NY2d 593, 597 ; People v Rosen, 81 NY2d 237 ; People v
Mitchell, 80 NY2d 519, 526-527 ; People v Mullen, 44 NY2d 1, 5
; People v Morin, 196 Misc 2d 114 [App Term, 9th & 10th Jud Dists 2003]).
As the Court of Appeals noted in People v Dokes (79 NY2d 656, 660 ), "[i]n determining
whether a defendant has a right to be present during a particular proceeding, a key factor is
whether the proceeding involved factual matters about which [the] defendant might have
peculiar knowledge that would be useful in advancing the defendant's or countering the
People's position" (see also People v Spotford, 85 NY2d at 596-597; People v
Favor, 82 NY2d 254 ; People v Morales, 80 NY2d 450 ;
People v Robinson, 203 AD2d 491, 492 ). New York also grants a
defendant a statutory right to be present at sidebar conferences
(CPL 260.20; People v Maher, 89 NY2d 318, 324 ; People v Favor,
82 NY2d at 265; People v Dokes, 79 NY2d at 662; People v Morin, 196
Misc 2d 114), which right need not be preserved by objection (see
People v Velasquez, 1 NY3d 44, 47-48 ; People v Dokes, 79 NY2d
In the case at bar, it is uncontroverted that defendant did not waive his right to be present at the sidebar conference in question. As the Court of Appeals stated in People v Spotford (85 NY2d at 597 [internal quotation marks and citations omitted]): "[T]he prospective use of prior bad acts of the defendant at his or her trial on new charges is also at issue in hearings held pursuant to People v Ventimigilia (52 NY2d 350, supra). The purpose of the Ventimigilia hearing is to determine whether alleged prior bad acts of the defendant can be used by the prosecution as direct evidence of defendant's guilt. The court is charged with weighing the probative value of the uncharged crimes against their potential for prejudice (id., at 359-360). As part of this discretionary balancing process, the court must consider the degree to which the evidence persuades the trier of fact that the particular fact exists and the [logical] distance of the particular fact from the ultimate issues of the case (id., at 360). Thus, the possibility that a defendant's participation at the hearing would be meaningful is apparent . . . Defendant was in the best position to deny or controvert the allegations with respect to the uncharged crimes, to point out errors in the prosecutor's account, and to provide counsel with the details of the underlying facts. In short, the defendant's presence [would have] help[ed] to ensure that the court's determination [was] not . . . predicated on the prosecutor's unrebutted view of the facts."
Defendant's absence from the sidebar conference at which the People's allegations were uncontroverted clearly involved factual matters about which defendant might have peculiar knowledge that would be useful in advancing his, or countering the People's, position (see People v Spotford, 85 NY2d at 596-597; People v Favor, 82 NY2d 254; People v Morales, 80 NY2d 450; People v Dokes, 79 NY2d at 660; People v Robinson, 203 AD2d at 492). Without defendant's presence, the District Court failed to obtain sufficient information to weigh the probative value of the prior bad acts against their potential for prejudice, and the record indicates that the court's determination was predicated on the prosecutor's unrebutted view of the facts. Consequently, defendant's absence deprived him of his constitutional and statutory rights (see e.g. People v Cain, 76 NY2d 119, 143-144 ).
Accordingly, the judgment of conviction is reversed and the matter is remitted to the District Court for a new trial. In view of the foregoing, the appeal from the order denying defendant's motion to vacate the judgment of conviction is dismissed as academic. We determine no other issue.
Molia, J.P., Tanenbaum and LaCava, JJ., concur.
Decision Date: October 31, 2011
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