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GOING TO TRIAL IN A NEW YORK LOCAL CRIMINAL COURT – MUST DEFENDANT BE PRESENT?

As a New York criminal defense attorney, at a law firm that handles a lot of criminal trials, I often am asked by clients charged with misdemeanors and/or violations in a New York State local criminal court if they must appear in court with me for trial. Generally a defendant must be present during his or her trial. CPL § 340.50 (1).
However, where a defendant is represented by an attorney, a court may, upon written motion by the defendant, waive the defendant’s appearance at trial provided the prosecutor doesn’t object. The defendant must file a written signed and notarized statement declaring the he or she waives their right to be present at trial and authorizing their attorney to conduct their defense in their absence. CPL § 340.50(2).
A defendant may also be excluded from his or her trial if they act in disruptive and disorderly manner to the point that the trial cannot proceed. Before a judge can exclude a defendant from his or her own trial, the defendant must be accorded a warning indicating that the defendant will be removed from the courtroom if he or she continues to act in a disruptive and disorderly manner. CPL § 340.50(2).
In reality, it is common place for defendants not to appear for traffic violation trials but instead to hire an attorney who appears with a signed and notarized “Authorization to Appear”. The written notice requirement is very often overlooked by the court and the prosecutor. However, there are some courts that require the formality of a written motion where the defendant chooses to go to trial on a traffic violation but not where the defendant chooses instead to have his attorney plead guilty to a reduced charge.
One judge who employs this policy is J. Glenn Galbreath of the Cayuga Heights Village Court. J. Galbreath has no problem waiving a traffic violator’s appearance at trial and taking pleas from attorneys with authorizations to appear signed by their clients. However, where a defendant chooses instead to proceed to trial on his or her traffic matter, J. Galbreath requires a written motion. Did somebody say coercive? Take a plea and save a trip to court or proceed to trial and either come to court or pay a lawyer to draft a motion. Sounds a bit coercive to me.
Not only does a defendant have a right to be present at trial, both the United States Constitution and the New York State Constitution grant a defendant the right to be present at all material stages of trial. Therefore, reversal of conviction was required where a defendant was not present during closing arguments and had not waived his presence or waived his presence by disorderly conduct. Benn v. Stinson, 917 F.Supp. 202 (1995).


A defendant’s right to be present at all material stages of trial extends to side-bar conferences. People v. Williams,11 A.D.3d 810, 784 N.Y.S.2d 185 (3rd Dept. 2004). However, reversal will not be required where a defendant is deprived of his right to be present at a side bar conference unless his presence would have affected the outcome of that conference. People v. Landry, 258 A.D.2d 475, 685 N.Y.S.2d 101 (2nd Dept. 1995). How can a defendant possibly show that his presence at a side bar conference would have affected the outcome of the case? Of course a defense attorney must explain to his or her client what was discussed at a side bar conference. However, how many times does a defendant challenge his or her attorney’s decisions during trial? In order to preserve an objection under this preposterous rule, a defense attorney should make a clear and detailed statement on the record immediately after the sidebar conference. In the on-the-record statement, the defense attorney should restate what was said at sidebar and object to the defendant’s absence.
It is critically important that the defendant’s attorney make a clear statement on the record regarding the court’s refusal to allow the defendant to be present at a sidebar conference. In People v. Williams (3 Dept. 2004) 11 A.D.3d 810, 784 N.Y.S.2d 185, the defendant appealed his conviction alleging that he was denied his right to participate in his defense because he was precluded from a sidebar conference. The Appellate court denied the appeal because there was a lack of on the record proof that the defendant was absent from the sidebar conference. Therefore, always make a record!!
Generally, it is not error for a trial court to preclude a defendant from a side bar conference concerning a potential juror’s personal reasons for not being able to serve as a juror. People v. Landry, 258 A.D.2d 475, 685 N.Y.S.2d 101 (2nd Dept. 1999). In People v. Carter, the Second Department held that defendant’s right to be present at all material stages of trial was not violated because he was not present at a side bar conversation with a prospective juror where the juror had previously answered yes when asked if he knew the judge. Because the potential juror had answered yes when asked if he knew the judge, defendant knew what the side bar discussion was about. 238 A.D.2d 348, 656 N.Y.S.2d 65 (2nd Dept. 1997). Amazingly, the First Department has held that a defendant’s presence is not required at a side bar conference involving a sitting juror who was alleged to have been sleeping. People v. Pujols, 194 A.D.2d 505, 599 N.Y.S.2d 568 (1st Dept. 1993).
If your case is going to trial, you must have competent attorneys who are experienced with all aspects of criminal trial. If you are not completely comfortable with your attorney at any stage in a criminal proceeding contact an experienced criminal attorney at Tilem & Campbell for a free consultation.