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Antommarchi Rights Can Be Waived By An Attorney Outside The Presence Of The Defendant

People v. Flinn 

New York Court of Appeals

2014 NY Slip Op 01260

Decided February 25, 2014

Issue: Whether a defendant can waive his Antommarchi rights to  be present at all conferences with the judge (at side bar as well) orally and through his attorney and outside of his hearing rather than professing the waiver in open court before the judge on the record.

Held:  the Court of Appeals held that a defendant can waive his Antommarchi rights through his attorney without the defendant actually hearing the waiver.

Facts: Defendant was tried for attempted murder and other crimes. Before beginning jury selection, the trial judge announced in defendant’s hearing:

“If there are any conferences at the bench, I just remind everyone the defendant is welcome to attend them, I will leave that up to defense counsel and the defendant as to whether or not he wants to get up and attend any of those conferences.”

“Your Honor, may I just put one thing on the record. Mr. Flinn is remaining at counsel table. I have discussed with him that he has the right to come up here during these discussions at the bench, and he has waived that right.”

Voir dire proceeded, and a number of bench conferences were held at which prospective jurors’ qualifications were discussed. There is no indication in the record that defendant attended, or asked to attend, any of these conferences. Defendant was convicted, and the Appellate Division affirmed

Defendant waived his Antommarchi right both implicitly and explicitly. He did so implicitly when, after hearing the trial judge say that he was “welcome to attend” the bench conferences, he chose not to do so. And he waived it explicitly by his lawyer’s statement to the court.

Legal Analysis: The implicit waiver is not significantly different from the one we upheld in People v Williams (15 NY3d 739 [2010]).

Defendant was free to attend bench conferences if he wanted to do so. This was the important point for him to understand — not whether his opportunity to attend was a right or a privilege.

As for the explicit waiver, we have repeatedly held that a lawyer may waive the Antommarchi right of his or her client (People v Velasquez, 1 NY3d 44, 47-50 [2003]; [because sidebar presence is a statutory, not a constitutional, right, “this Court has been more flexible regarding the acceptable form of voluntary waivers by defendants and their lawyers”]).

Defendant seeks to distinguish these cases on the ground that here the lawyer’s statement waiving the right was not made in defendant’s hearing. But the premise of Velasquez and Keen is that a lawyer may be trusted to explain rights to his or her client, and to report to the court the result of that discussion.

Indeed, in Velasquez, while the client did hear the lawyer’s oral waiver, it is unlikely that he understood it. The only relevant words said in open court in Velasquez were “Waived” by the lawyer and “Antommarchi waived” by the court (1 NY3d at 47).

Accordingly, the order of the Appellate Division was affirmed.

Stephen Preziosi is a criminal appeals lawyer in New York City’s Times Square.  His firm handles both New York Criminal Appeals and Federal Criminal Appeals throughout the nation.