Nichols v. Kelly

23 Citing cases

  1. Morales v. Artus

    05 Civ. 3542 (BSJ) (AJP) (S.D.N.Y. Dec. 28, 2006)   Cited 7 times
    Noting that the U.S. Constitution generally does not require a defendant's presence at sidebar conferences

    However, "'[f]ederal standards regarding a defendant's presence at a sidebar are less stringent than New York's standards.'"McKnight v. Superintendent Albauch, 2000 WL 1072351 at *6 (quoting Nichols v. Kelly, 923 F. Supp. 420, 425 (W.D.N.Y. 1996)). "Indeed, the Federal Constitution generally 'does not require a defendant's presence at sidebar conferences.'"

  2. Ellis v. Phillips

    No. 04 Civ. 7988 (SHS) (AJP) (S.D.N.Y. Jul. 13, 2005)   Cited 18 times

    However, "'[f]ederal standards regarding a defendant's presence at a sidebar are less stringent than New York's standards.'"McKnight v. Superintendent Albauch, 2000 WL 1072351 at *6 (quoting Nichols v. Kelly, 923 F. Supp. 420, 425 (W.D.N.Y. 1996)); accord, e.g., Dickens v. Filion, 2002 WL 31477701 at *9; Bryant v. Bennett, 2001 WL 286776 at *3. "Indeed, the Federal Constitution generally 'does not require a defendant's presence at sidebar conferences.'"

  3. Dickens v. Filion

    02 Civ. 3450 (DLC) (AJP) (S.D.N.Y. Nov. 6, 2002)   Cited 42 times
    Noting that "there is no federally-cognizable ineffective assistance claim concerning advice regarding the state grand jury process"

    However, "'[f]ederal standards regarding a defendant's presence at a side bar are less stringent than New York's standards.'" McKnight v.Superintendent Albauch, 2000 WL 1072351 at *6 (quoting Nichols v. Kelly, 923 F. Supp. 420, 425 (W.D.N.Y. 1996)); accord, e.g., Bryant v. Bennett, 2001 WL 286776 at *3 "Indeed, the Federal Constitution generally "does not require a defendant's presence at sidebar conferences.'" McKnight v.Superintendent Albauch, 2000 WL 1072351 at *6 (quoting Gaiter v. Lord, 917 F. Supp. at 152); accord, e.g., United States v. Feliciano, 223 F.3d 102, 111 (2d Cir. 2000) (noting that the Court has found no case "in which an appellate court has found a structural defect where a defendant was present throughout but unable to hear a circumscribed portion of voir dire, and whose counsel was allowed to consult with him about the limited questioning outside his hearing."), cert. denied, 532 U.S. 943, 121 S.Ct. 1405, 1406 (2001); Persaud v. Mantello, 99 CV 1861, 2002 WL 1447484 at *2 (E.D.N.Y. July 2, 2002) ("district courts in this circuit have held that there is no right to be present at a sidebar conference during voir dire") (citing cases); Johnson v. McGinnis, 99 Civ. 11231, 2001 WL 740727 at *3 (S.D.N.Y. June 29,

  4. Bryant v. Bennett

    00 Civ. 5692 (AGS)(AJP) (S.D.N.Y. Mar. 2, 2001)   Cited 35 times

    However, "'[f]ederal standards regarding a defendant's presence at a sidebar are less stringent than New York's standards.'" McKnight v. Superintendent Albauch, 2000 WL 1072351 at *6 (quoting Nichols v. Kelly, 923 F. Supp. 420, 425 (W.D.N.Y. 1996)). "Indeed, the Federal Constitution generally 'does not require a defendant's presence at sidebar conferences.'

  5. Lyons v. Ohio Adult Parole Authority

    105 F.3d 1063 (6th Cir. 1997)   Cited 335 times   2 Legal Analyses
    Holding that district courts have authority to grant certificates of appealability under the recently amended habeas corpus framework

    The district judge will have an intimate knowledge of both the record and the relevant law and could simply determine whether to issue the certificate of appealability when she denies the initial petition. See Taylor v. Mitchell, 939 F. Supp. 249, 258 (S.D.N.Y. 1996) (denying writ and certificate of probable cause in single order); Nichols v. Kelly, 923 F. Supp. 420, 427 (W.D.N.Y. 1996) (denying writ and certificate of probable cause in single order); Huffman v. Moore, 333 F. Supp. 1315, 1317 (E.D. Tenn. 1971) (including certificate of probable cause as part of opinion denying writ). But see note 4, supra (citing cases in which district judges ruled on the motion for a certificate of probable cause after the notice of appeal had been filed).

  6. Jin Cheng Lin v. Lamanna

    18-CV-5005 (AMD) (E.D.N.Y. Aug. 24, 2022)   Cited 3 times

    .... Or, if judgment of conviction has been entered on more than one such count, the district court should vacate the conviction on all but one.” (internal citations omitted)); Paul v. Henderson, 698 F.2d 589, 593 (2d Cir. 1983) (finding that felonymurder and attempted robbery convictions did not violate the double jeopardy clause's protection against multiple punishments, where the petitioner challenged his conviction for attempted robbery and had it vacated, “yield[ing] only one punishment”); see, e.g., Nichols v. Kelly, 923 F.Supp. 420, 423 (W.D.N.Y. 1996) (holding that the Appellate Division's dismissal of allegedly multiplicitous convictions “corrected any constitutional infirmity existing in the indictment or judgment of conviction,” rendering the petitioner's double jeopardy and multiplicitous arguments “moot”). The petitioner's argument that his “rights were violated by the Courts (sua sponte) Modification” of the judgment is unpersuasive.

  7. Johnson v. New York

    17-CV-4948 (JMA) (E.D.N.Y. Jul. 29, 2019)   Cited 1 times

    Courts recognize that, "federal standards regarding a defendant's presence at a side bar[] are less stringent than New York's standards." Nichols v. Kelly, 923 F. Supp. 420, 426 (W.D.N.Y. 1996). Here, Petitioner's absence from the two sidebar conferences did not thwart his right to a fair trial, and did not rise to a constitutional violation because the Constitution does not require Petitioner's presence at these sidebars, regardless of whether the first Antommarchi waiver was valid at the time of the sidebars.

  8. Morrison v. Brown

    11-CV-3366 (KAM) (E.D.N.Y. Jan. 18, 2019)   Cited 3 times

    This right, however, "is not absolute," and "applies only to the extent that a fair and just hearing would be thwarted by the defendant's absence." Id. at 473-74 (citing Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934) and quoting United States v. Ferrarini, 219 F.3d 145, 152 (2d Cir. 2000)); see also Gaiter v. Lord, 917 F. Supp. 145, 152 (E.D.N.Y. 1996) ("[Petitioner's] presence was not required at the alleged sidebar discussions because her absence would not have had 'a substantial effect on [her] ability to defend.'" (quoting Snyder, 291 U.S. at 108)); see also Nichols v. Kelly, 923 F. Supp. 420, 426 (W.D.N.Y. 1996) ("Federal standards regarding a defendant's presence at a side bar[] are less stringent than New York's standards."). B. Application

  9. Gibson v. Romanowski

    Case No. 2:12-CV-15650 (E.D. Mich. Apr. 28, 2015)   Cited 3 times

    Petitioner's Double Jeopardy claim that he was improperly convicted of both assault with intent to murder and assault with intent to do great bodily harm less than murder has been mooted by virtue of the fact that the Michigan Court of Appeals ordered that the second charge be vacated. See Harris v. Metrish, No. 2006 WL 1313804, *6 (E.D. Mich. May 12, 2006)(citing Nichols v. Moore, 923 F. Supp. 420, 423-24 (W.D.N.Y. 1996). This portion of petitioner's Double Jeopardy claim is meritless, because petitioner received all the relief to which he was entitled for this error when the Michigan Court of Appeals vacated petitioner's assault with intent to do great bodily harm conviction.

  10. McDonald v. Rapelje

    Case No. 4:12-13228 (E.D. Mich. Sep. 12, 2014)

    Petitioner's Double Jeopardy claim that he was improperly convicted of one count of first-degree felony murder and one count of second-degree murder with respect to a single victim has been mooted by virtue of the fact that the Michigan Court of Appeals ordered that second-degree murder conviction be vacated. See Harris v. Metrish, No. 04-CV-73323-DT; 2006 WL 1313804, at 6 (E.D. Mich. May 12, 2006)(citing Nichols v. Moore, 923 F. Supp. 420, 423-24 (W.D.N.Y. 1996). Petitioner's Double Jeopardy claim is meritless, because petitioner received all the relief to which he was entitled for this error when the Michigan Court of Appeals vacated the second-degree murder conviction.