Opinion
Argued November 19, 1996
Decided December 19, 1996
APPEAL, by permission of a Justice of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that court, entered February 29, 1996, which (1) reversed, on the law, a judgment of the Supreme Court (Clifford Scott, J., at trial; Jeffrey M. Atlas, J., at reconstruction hearing), entered in New York County upon a verdict convicting defendant of robbery in the first degree and robbery in the second degree, and (2) remanded the matter for a new trial.
Robert M. Morgenthau, District Attorney of New York County, New York City (Patrick J. Hynes and Morrie I. Kleinbart of counsel), for appellant.
Robert S. Dean, New York City, and Daniel L. Greenberg for respondent.
People v Davidson, 224 A.D.2d 354, affirmed.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Upon direct appeal from his conviction for first and second degree robbery, defendant argued that he was deprived of his right to be present during voir dire questioning of prospective jurors ( see, People v Antommarchi, 80 N.Y.2d 247). Because the trial court had refused to record substantial portions of the voir dire proceeding, the Appellate Division remanded the case for a reconstruction hearing. The reconstruction court found that defendant was not present during several conferences with prospective jurors at the Bench regarding their ability to be fair and impartial. Two of these prospective jurors were challenged peremptorily by the defense, and one was excused by the parties on consent.
We agree with the Appellate Division that defendant's exclusion from the Bench conferences violated his right to be present during all material stages of trial, requiring reversal. A defendant has the right to be present during questioning of prospective jurors concerning their ability to weigh the evidence objectively. Where, however, the defendant's presence at a proceeding could not have afforded any meaningful opportunity to affect the outcome, the defendant's exclusion does not require reversal ( see, People v Maher, 89 N.Y.2d 318 [decided today]; People v Roman, 88 N.Y.2d 18, 26).
Here, three of the prospective jurors questioned in defendant's absence were excused by either a defense peremptory challenge or with defense counsel's consent. Each prospective juror was thus dismissed as the result of a discretionary judgment made by defense counsel. Because defendant might have provided valuable input regarding his attorney's discretionary decision to excuse these three venire members, the record "`do[es] not negate the possibility that defendant might have made a meaningful contribution to the [proceeding]'" ( People v Roman, 88 N.Y.2d at 28, supra, quoting People v Favor, 82 N.Y.2d 254, 267).
We reject the People's invitation to distinguish among peremptory challenges or consensual excusals based upon whether the dismissed juror appeared favorable or unfavorable for the defense, a procedure that would result in sheer speculation by reviewing courts. It constitutes yet another attempt to inject a case-specific prejudice analysis into the inquiry, which this Court has repeatedly held inapplicable to violations of a defendant's fundamental right to be present ( see, People v Favor, 82 N.Y.2d at 267, supra).
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.
Order affirmed in a memorandum.