| People v Walker |
| 2010 NY Slip Op 08491 [78 AD3d 1671] |
| November 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Frederick E.Walker, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.),rendered January 14, 2000. The judgment convicted defendant, upon a jury verdict, of robbery in thefirst degree (two counts), assault in the first degree (two counts), grand larceny in the fourth degree(two counts), robbery in the second degree, and attempted robbery in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: On a prior appeal, we affirmed the judgment convicting defendant of, inter alia,robbery in the first degree (Penal Law § 160.15 [1], [3]; People v Walker, 292 AD2d791 [2002], lv denied 98 NY2d 656 [2002]). We subsequently granted defendant's motion fora writ of error coram nobis on the ground that appellate counsel had failed to raise an issue on appealthat may have merit, i.e., that defendant was denied his right to be present at his Sandovalhearing (People v Walker, 50 AD3d1629 [2008]; see People v Dokes, 79 NY2d 656, 660-662 [1992]), and we vacated ourprior order. We now consider the appeal de novo.
Contrary to the contention of defendant, we conclude that he failed to satisfy his burden of comingforward with substantial evidence establishing his absence from the Sandoval hearing (see People v Foster, 1 NY3d 44, 48[2003]; People v Carter, 44 AD3d677, 678 [2007], lv denied 9 NY3d 1031 [2008]; People v Valentine, 7 AD3d 275 [2004], lv denied 3 NY3d 682[2004]). The court reporter's failure to document defendant's presence or lack thereof is insufficient tosatisfy defendant's burden of rebutting the presumption of regularity that attaches to judicial proceedings(see Foster, 1 NY3d at 48; see alsoPeople v Andrew, 1 NY3d 546 [2003]). We note that Supreme Court addressed defendantfollowing its Sandoval determination, thereby establishing defendant's presence in thecourtroom for at least a portion of the proceedings, and the record establishes the presence ofdefendant during the later proceedings on his motion to modify the court's Sandoval ruling. Wefurther conclude that a reconstruction hearing is unnecessary. "Reconstruction hearings should not beroutinely ordered where, as here, the record is simply insufficient to establish facts necessary to meetthe defendant's burden of showing that he [or she] was absent from a material stage of the trial"(Foster, 1 NY3d at 49; see Valentine, 7 AD3d 275).
All concur except Lindley, J., who votes to reverse in accordance with the following [*2]memorandum.
Lindley, J. (dissenting). I respectfully dissent. As noted by the majority, we previously granteddefendant's motion for a writ of error coram nobis on the ground that defendant's appellate counselfailed to raise a possibly meritorious issue, i.e., whether defendant was denied the right to be presentduring the Sandoval hearing (Peoplev Walker, 50 AD3d 1629 [2008]). In my view, reversal is required upon our de novo reviewof defendant's appeal.
It is unclear from the trial transcript whether defendant was present in the courtroom when theSandoval hearing commenced, or during any portion thereof. At the outset of the proceedingsthat day, defense counsel stated that she had "just went back to see [defendant]" and that defendantwas not dressed for trial because the jail personnel had lost his trial clothing. After a brief discussionwith respect to obtaining other clothing for defendant, Supreme Court stated, "I didn't come here todayto spend my day waiting for clothes. Trust me. Any Sandoval?" The Sandoval hearingthen commenced. Following argument from defense counsel both for the codefendant and defendant,the court ruled from the bench that the prosecutor would be permitted to question defendant concerningtwo misdemeanor convictions, for menacing and petit larceny, but not concerning his three felonyconvictions, which the court deemed to be too remote. The record reflects that, shortly after renderingits decision, the court addressed both defendant and the codefendant on the record with respect to theirright to be present for sidebar discussions during voir dire. Thus, although it is clear that defendant waspresent in the courtroom at some point on the day of the Sandoval hearing, it is not possible toascertain from the trial transcript whether defendant was present for the Sandoval hearing, orwhether he entered the courtroom following the hearing.
As the majority correctly notes, a "presumption of regularity attaches to judicial proceedings [that]may be overcome only by substantial evidence" (People v Foster, 1 NY3d 44, 48 [2003] [citation omitted]), and I agreewith the majority that "the court reporter's failure to document defendant's presence or lack thereof isinsufficient to satisfy defendant's burden of rebutting the presumption of regularity that attaches tojudicial proceedings . . . ." Here, however, the transcript indicates that defendant was notpresent when the court decided to proceed with the Sandoval hearing in his absence, and thereis "significant ambiguity in the record" whether defendant entered the courtroom before the hearingcommenced (id. at 49). Thus, because the record is ambiguous on the issue whether defendantwas present for the Sandoval hearing, and because the Sandoval ruling was "notwholly favorable" to defendant (People v Favor, 82 NY2d 254, 267 [1993], rearg denied83 NY2d 801 [1994]), in my view we should hold the case, reserve decision, and remit the matterto Supreme Court for a reconstruction hearing (see People v Michalek, 82 NY2d 906, 907[1993]). At the reconstruction hearing, defendant would have the burden of overcoming thepresumption of regularity by substantial evidence (see People v Cruz, 14 NY3d 814, 816 [2010]).
I cannot agree with the People's alternative contention that, even if defendant was absent during theSandoval hearing, reversal is not required because he was present when the court revisited theissue after the People rested and the court then modified its prior Sandoval ruling. Themodification of the Sandoval ruling occurred during an off-the-record conference at whichdefendant was present, when defense counsel asked the court to reconsider its Sandoval rulingwith respect to the menacing conviction. At the conclusion of the conference, the court only slightlymodified its ruling by precluding the prosecutor from questioning defendant concerning the underlyingfacts of that conviction. There is no indication in the record before us that defense counsel also askedthe court to revisit its ruling with respect to the petit larceny conviction or that the court in fact did so,and thus it cannot be said that the court conducted a de novo Sandoval hearing in defendant'spresence. Upon remittal, in the event that the court determines at the reconstruction hearing thatdefendant was not present for the initial Sandoval hearing, the court should determine whetherthere was any discussion of the petit larceny conviction when the court reconsidered its initialSandoval ruling. Present—Scudder, P.J., Smith, Carni, Lindley and Green, JJ.