People v Richardson (Harry)
Annotate this CaseDecided on May 7, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., LIPPMAN and OWEN, JJ
2002-791 D CR.
The People of the State of New York, Respondent,
against
Harry A. Richardson, Appellant.
Appeal from a judgment of the Justice Court of the Town of Red Hook, Dutchess County (Richard R. Griffiths, J.), rendered April 25, 2002. The judgment convicted defendant, upon a jury verdict, of 12 counts of depriving an animal of necessary sustenance, food or drink.
Appeal held in abeyance and matter remanded to the Justice Court of the Town of Red Hook to conduct a reconstruction hearing to determine whether defendant was present at sidebar and in camera conferences with prospective jurors and, if not, whether defendant voluntarily, knowingly and intelligently waived said right and, in the event there was no such waiver, what transpired during the conferences.
Defendant and his daughter, Mary Helen Richardson, were charged in a single accusatory instrument and, following a joint jury trial, convicted of 12 counts of violating former section 353 of the Agriculture and Markets Law in that on or about, and between, January 1, 2001 and April 9, 2001, they deprived 12 specified horses of necessary sustenance, food or drink.
Defendant contends that the court erroneously denied his motion to set aside the verdict or conduct a hearing due to the People's failure to reveal exculpatory information concerning the efforts made by the owner of the farm at which the horses were kept to prohibit defendant from providing food and water to the animals. The exculpatory information, set forth in the affidavit in support of the motion, was to the effect that the affiant informed the People before trial that the owner stated that he had not brought an action against Harry Richardson for nonpayment of rent because it was easier to turn off the water and call the Dutchess County Society for the [*2]Prevention of Cruelty to Animals. The prosecutor stated in her affirmation in opposition to the motion that she did not recall affiant having provided the information to her.
Post-conviction Brady claims (Brady v Maryland, 373 US 83 [1963]) are usually denied unless the putative exculpatory information was "highly material to the defense" (People v Simmons, 36 NY2d 126, 132 [1975]), thereby depriving the defendant of an opportunity to cross-examine a witness on a trial issue, and depriving the defendant of due process (see People v Martin, 240 AD2d 5, 9 [1998], lv denied 92 NY2d 856 [1998]). Here, defendant was involved in a dispute with the owner and, therefore, fully aware of the owner's actions. In addition, since the owner was not called as a witness by the People, the statement could not be used for impeachment purposes.
Prior to trial, the court conducted a Sandoval hearing (People v Sandoval, 34 NY2d 371 [1974]) at which defendant sought, inter alia, to suppress the use of his prior conviction in New Jersey on February 28, 2001 of cruelty to animals, for failure to provide adequate food, water and nutrition. The court found that said conviction was admissible as it was relevant to defendant's credibility and established that defendant was knowledgeable of what should have been fed to horses. The court conditioned the admission of said prior conviction upon submission of proof prior to trial that the conviction was either a felony or misdemeanor and, during its charge to the jury, limited the use of said conviction to assist the jury in evaluating defendant's testimony.
The nature and extent of cross-examination have always been subject to the sound discretion of the trial court (People v Sandoval, 34 NY2d at 374). Here, the court struck an appropriate balance between the probative value of defendant's conviction in New Jersey for cruelty to animals for impeachment purposes against the possible prejudice to defendant (see People v Dahlbender, 23 AD3d 493 [2005], lv denied 6 NY3d 832 [2006]; see also People v Myron, 28 AD3d 681 [2006]; People v Kinsler, 228 AD2d 452, 453 [1996], lv denied 88 NY2d 988 [1996]). Defendant failed to meet his burden of demonstrating that the prejudicial effect of the evidence of said conviction so outweighed the probative evidence that its exclusion was warranted (see People v Sandoval, 34 NY2d at 378; People v Springer, 13 AD3d 657 [2004], lv denied 4 NY3d 803 [2005]). The mere fact that the out-of-state conviction was similar to the charges herein, did not warrant its preclusion (see People v Dahlbender, 23 AD3d 493, supra; see also People v Gray, 198 AD2d 3 [1993], affd 84 NY2d 709 [1995]). This is especially so, where, as here, the court limited the People's inquiry to mentioning that there was a previous conviction for cruelty to animals and the penalty imposed (see People v Smith, 217 AD2d 520 [1995], lv denied 87 NY2d 1025 [1996]).
The potential prejudice to defendant was further mitigated by the trial court's instruction to the jury that it could only consider defendant's prior conviction in assisting it in evaluating defendant's credibility, thereby "ensuring that the jury did not employ the challenged evidence for an improper purpose" (People v Foster, 211 AD2d 640, 641 [1995], lv denied 85 NY2d 909 [1995]). It cannot be presumed that the jurors disregarded the trial court's instruction (see People v Davis, 58 NY2d 1102, 1104 [1983]). Even if it were error for the court to allow limited cross-examination as to said conviction, the error, if any, was harmless in view of the overwhelming evidence of defendant's guilt (see People v Bianchi, 34 AD3d 690 [2006]).
A defendant has a fundamental right to be present at all material stages of the trial (see CPL 260.20; People v Turaine, 78 NY2d 871, 872 [1991]; see generally People v Dokes, 79 [*3]NY2d 656, 659-660 [1992]), including the impaneling of the jury (People v Velasco, 77 NY2d 469, 472 [1991]; People v Mullen, 44 NY2d 1, 4 [1978]). A defendant's right to be present during discussions relating to the qualifications of jurors or prospective jurors depends on the subject matter of the discussions. A defendant's right to be present is not violated where the discussions relate to juror qualifications such as physical impairment, family obligations or work commitments (see People v Camacho, 90 NY2d 558, 561 [1997]; People v Antommarchi, 80 NY2d 247, 250 [1992], rearg denied 81 NY2d 759 [1992]; People v Velasco, 77 NY2d at 472-473). The court may not conduct an interview that concerns a juror's background, bias or hostility, or ability to weigh the evidence objectively, unless defendant is present, as that would constitute a material stage of a trial (see People v Antommarchi, 80 NY2d at 250; see also People v Maher, 89 NY2d 318, 324 [1996]; People v Sloan, 79 NY2d 386, 392-393 [1992]). Although the right to be present during questioning of prospective jurors on matters of bias or prejudice may be waived by a voluntary, knowing and intelligent choice (People v Williams, 92 NY2d 993 [1998]; People v Vargas, 88 NY2d 363, 375-376 [1996]), a waiver by defendant's counsel outside of defendant's presence is ineffective (see People v Antommarchi, 80 NY2d at 250), and a waiver by defendant will not be inferred from a silent record (see People v Allen, 300 AD2d 1098 [2002]; see also People v Lopez, 6 NY3d 248, 255 [2006]; People v Callahan, 80 NY2d 273, 283 [1992]). Moreover, a defendant is not required to object to his exclusion in order to
preserve a claim that he was denied the right to be present (see People v Antommarchi, 80 NY2d at 250; see also People v Dokes, 79 NY2d at 662; People v Mangan, 258 AD2d 819 [1999], lv denied 93 NY2d 927 [1999]).
Notwithstanding the foregoing, there exists a distinction between those violations that require reversal and those that are harmless error. In instances where a prospective juror is sworn as a juror, is peremptorily challenged by defense counsel, or is excused by consent of defense counsel, the violation will result in a reversal of defendant's conviction (see People v Davidson, 89 NY2d 881, 883 [1996]; see also People v Allen, 300 AD2d 1098, supra). In such instances, the defendant may be deemed to have been deprived of the opportunity to provide valuable input regarding his attorney's decision (People v Davidson, 89 NY2d at 883; see People v Sloan, 79 NY2d at 392). However, where it appears from the record that a prospective juror was excused by the court based on a challenge for cause or a peremptory challenge by the People, the violation of defendant's right will be deemed harmless since any contribution by defendant would have been superfluous (see People v Maher, 89 NY2d at 325; see also People v Vargas, 88 NY2d at 378; People v Roman, 88 NY2d 18, 26-28 [1996]).
In the case at bar, there is nothing in the record from which this court can determine whether defendant was present during sidebar and in camera conferences
with prospective jurors. Moreover, the record is silent as to whether defendant affirmatively waived his right to be present (see People v Allen, 300 AD2d 1098, supra; see also People v Cohen, 302 AD2d 904 [2003]). The record simply reveals that said prospective jurors were questioned individually in the presence of counsel. Although some of the prospective jurors questioned served on the jury, others were excused by the court on consent of the parties. In addition, counsel for defendant Harry Richardson exercised peremptory challenges as to three of [*4]the prospective jurors and one peremptory challenge of an alternate prospective juror. Counsel also exercised a number of challenges for cause. However, it cannot be determined from the record the nature of the discussions and the basis for the dispositions. In the absence of said information, defendant's claim cannot be resolved. Since the foregoing raises issues sufficient to rebut the presumption of regularity (see People v Velasquez, 1 NY3d 44 [2003]; see also People v Cahill, 2 NY3d 14 [2003]), this court must reserve decision and remit the matter to the court below for a reconstruction hearing on said issues (see People v Allen, 300 AD2d 1098, supra; People v Sands, 280 AD2d 561 [2001]; People v Ramos, 245 AD2d 314, 315 [1997]).
The other issues raised by defendant on this appeal were considered and found to be without merit.
Rudolph, P.J., Lippman and Owen, JJ., concur.
Decision Date: May 7, 2007
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