POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On June 10, the New York Court of Appeals issued a divided opinion in People v. Rivera regarding a criminal defendant’s right to be present during any supplemental instructions the trial court may give to even a single member of the jury. Defendant Rivera was charged with murder and illegal possession of a weapon. While the jury was deliberating, the trial judge informed the attorneys that juror number 11 requested to speak with the court, and the attorneys consented to the judge’s meeting with the juror, with no one else present.

The judge then had a colloquy in the robing room with the juror, who it turned out, wanted further guidance on “imminent danger,” relating to the defendant’s argument that he killed in self-defense. After the colloquy, the judge informed the attorneys and defendant about the meeting and told them that a transcript of the colloquy was available for review. Neither counsel requested a reading of the transcript.

The jury acquitted on the murder charge but found the defendant guilty of the weapons charge. On appeal, the Second Department reversed the conviction on the weapons charge because the defendant was not present during the court’s colloquy with juror number 11.

A majority of the Court of Appeals affirmed the Second Department’s decision and agreed that holding this colloquy in the absence of the defendant was – similar to the recent People v. Walston decision– a violation of CPL § 310.30 and a “mode of proceedings error” that did not require an objection in order to be raised on appeal.

Rivera was a 4-3 decision. Judge Abdus-Salaam wrote an extensive and vigorous dissenting opinion, in which Judges Read and Smith joined. The dissenters opined that, given the facts of the case and the purpose of the presence rule,

the trial court committed a de minimis violation of defendant’s right to be present rather than a mode of proceedings error.

The dissenters cautioned that

[u]nder the majority’s holding, a conscientious defense counsel has every reason to encourage a trial court to conduct insignificant proceedings in the defendant’s absence, knowing that the court’s actions will not meaningfully affect the jury’s consideration of the case and will provide a guaranteed reversal of a conviction on appeal.

The Rivera majority took a strong stand on the “absolute right” of a criminal defendant to be present during all instructions a court provides to the jury. On the other hand, the Rivera dissenters raise the concern that strict application of the “mode of proceedings” doctrine may lead to situations in which defense counsel’s advocacy for the client requires counsel not to object to errors where an objection would otherwise be required.

Rivera and Walston indicate that the Court of Appeals is divided on the scope of CPL § 310.30 and the “mode of proceedings” doctrine. It seems likely that the Court will confront these issues again.

References:

• People v. Rivera, 2014 NY Slip Op 04115, 2014 WL 2573347 (June 10, 2014).
• People v. Walston, 2014 N.Y. Slip Op. 04229, 2014 WL 2608462 (June 12, 2014).