Opinion
2019-1020 S CR
04-28-2022
The PEOPLE of the State of New York, Respondent, v. Antonio GARCIA, Also Known as Walter Blanco, Appellant.
Feldman & Feldman (Steven A. Feldman of counsel), for appellant. Suffolk County District Attorney (Sharyn Gitter of counsel), for respondent.
Feldman & Feldman (Steven A. Feldman of counsel), for appellant.
Suffolk County District Attorney (Sharyn Gitter of counsel), for respondent.
PRESENT: TIMOTHY S. DRISCOLL, J.P., HELEN VOUTSINAS, BARRY E. WARHIT, JJ.
ORDERED that the judgments of conviction are affirmed.
Defendant was charged in an information with common-law driving while intoxicated ( Vehicle and Traffic Law § 1192 [3] ), and, in a simplified traffic information, with making an unsafe lane change ( Vehicle and Traffic Law § 1128 [a] ), among other charges which were dismissed prior to trial. On April 2, 2019, defendant and his counsel signed an Antommarchi waiver form just prior to the start of jury selection. The court asked defendant whether he "agree[d] to waive your right to be personally present at the judge's bench while any juror is questioned" and "to waive your right to be present at any conferences concerning discussions of law," with the understanding "that this waiver may be revoked by you at any time." Defendant answered in the affirmative. After questioning of the first panel of prospective jurors was completed, the prosecutor and defense counsel had a sidebar conference with the judge in chambers, but without defendant present. There, they selected jurors for the trial and questioned a potential juror about his residency. The entirety of the voir dire, other than this sidebar conference, was conducted in defendant's presence.
The next day, April 3, 2019, defense counsel moved for a mistrial due to counsel's own failure to request that defendant be allowed to be present at the sidebar conference. The court denied the motion based upon defendant's oral and written waivers. The written waiver, which defendant and his counsel signed, states, in relevant part:
"I have been informed of, and understand, that I have the absolute right to be present during all stages of proceedings in which I am a named defendant. I further understand that this includes the right to be present at the bench or in chambers during conferences between the Judge and counsel, including those where jurors or prospective jurors are present.
After conferring with my attorney, I agree, in open court, to waive my right to be present at all such conferences, unless I specifically request to be present on the record."
Following the trial, the jury acquitted defendant of common-law driving while intoxicated, but convicted him of the lesser-included charge of driving while ability impaired ( Vehicle and Traffic Law § 1192 [1] ). The jury also convicted defendant of making an unsafe lane change. Defendant was sentenced on May 30, 2019.
On appeal, defendant contests neither the validity of the written Antommarchi waiver, nor the knowing, voluntary and intelligent nature of his written and verbal consent to so waive. Rather, defendant re-submits his preserved complaint that the District Court should have granted him a mistrial at his counsel's request. Defendant's
"contention that he was deprived of a fair trial ... because he was not present at sidebar conferences with prospective jurors is without merit. Before the [ ] trial, [ ] defendant signed an Antommarchi waiver. He stated in open court that he understood that he was giving up the right to be present during sidebar conferences with prospective jurors, and that he was waiving that right knowingly and intelligently" ( People v Croom , 171 AD3d 781, 782-783 [2019] ; see People v Wilkins , 37 NY3d 371, 377-378 [2021] ["the statutory right to be present alongside defense counsel at a sidebar conference can be waived by a voluntary, knowing and intelligent choice, and the waiver can be either express or implied"] [internal quotation marks omitted]).
As "[n]othing in the record calls into question the effectiveness of defendant's waiver" that "occurred in open court in the presence of defendant" ( People v Velasquez , 1 NY3d 44, 49-50 [2003] ), defendant's sole contention on appeal lacks merit.
Accordingly, the judgments of conviction are affirmed.
DRISCOLL, J.P., VOUTSINAS and WARHIT, JJ., concur.