Antommarchi rule in New York

2025Defendant appeals. [FN1] We agree with defendant that he was improperly excluded from bench conferences during jury selection prior to executing an Antommarchi waiver, but conclude that the error is not reversible under the circumstances. [FN2] "[A] defendant has a statutory right to be personally present at all material stages of a trial, including sidebar conferences" ( People v Burton , 215 AD3d 1054, 1061 [3d Dept 2023] [internal quotation marks and citations omitted], lv denied 40 NY3d 927 [2023]; see CPL 260.20; People v Antommarchi , 80 NY2d 247, 250 [1992]).

2025Defendant appeals. [FN1] We agree with defendant that he was improperly excluded from bench conferences during jury selection prior to executing an Antommarchi waiver, but conclude that the error is not reversible under the circumstances. [FN2] "[A] defendant has a statutory right to be personally present at all material stages of a trial, including sidebar conferences" ( People v Burton , 215 AD3d 1054, 1061 [3d Dept 2023] [internal quotation marks and citations omitted], lv denied 40 NY3d 927 [2023]; see CPL 260.20; People v Antommarchi , 80 NY2d 247, 250 [1992]).

2025This right may be waived by "a voluntary, knowing and intelligent choice, and the waiver can be either express or implied" ( People v Wilkins , 37 NY3d 371, 377-378 [2021] [internal quotation marks and citation omitted]).

2022The Appellate Division erred in holding that defendant's Antommarchi claim (People v Antommarchi, 80 NY2d 247 [1992]) entitled him to a new trial (see People v Wilkins, 37 NY3d 371 , 380 [2021]).

2019Despite the Antommarchi violation, the majority concludes that reversal is not required because there was no possibility that "defendant's presence at [the sidebar conference] could . . . have afforded any meaningful opportunity to affect the outcome" ( People v Davidson , 89 NY2d 881, 882 [1996]; see People v Roman , 88 NY2d 18, 26 [1996], rearg denied 88 NY2d 920 [1996]).

2019Despite the Antommarchi violation, the majority concludes that reversal is not required because there was no possibility that "defendant's presence at [the sidebar conference] could . . . have afforded any meaningful opportunity to affect the outcome" ( People v Davidson , 89 NY2d 881, 882 [1996]; see People v Roman , 88 NY2d 18, 26 [1996], rearg denied 88 NY2d 920 [1996]).

2019It is well settled that reversal for an Antommarchi violation is not required where a "potential juror has been excused for cause by the court or as a result of a peremptory challenge by the People" ( People v Maher , 89 NY2d 318, 325 [1996]).

2019It is well settled that reversal for an Antommarchi violation is not required where a "potential juror has been excused for cause by the court or as a result of a peremptory challenge by the People" ( People v Maher , 89 NY2d 318, 325 [1996]).

2014“Although the right to be present at sidebar questioning need not be preserved by objection, a defendant alleging an Antommarchi violation must nevertheless present an adequate record for appellate review” (People v Velasquez, 1 NY3d 44, 47-48 [2003] [citations omitted]; see People v Abdullah, 28 AD3d 940, 941 [2006], lvs denied 7 NY3d 784 [2006]).

2014“Although the right to be present at sidebar questioning need not be preserved by objection, a defendant alleging an Antommarchi violation must nevertheless present an adequate record for appellate review” (People v Velasquez, 1 NY3d 44, 47-48 [2003] [citations omitted]; see People v Abdullah, 28 AD3d 940, 941 [2006], lvs denied 7 NY3d 784 [2006]).

2014“Although the right to be present at sidebar questioning need not be preserved by objection, a defendant alleging an Antommarchi violation must nevertheless present an adequate record for appellate review” (People v Velasquez, 1 NY3d 44, 47-48 [2003] [citations omitted]; see People v Abdullah, 28 AD3d 940, 941 [2006], lvs denied 7 NY3d 784 [2006]).

2014“Although the right to be present at sidebar questioning need not be preserved by objection, a defendant alleging an Antommarchi violation must nevertheless present an adequate record for appellate review” (People v Velasquez, 1 NY3d 44, 47-48 [2003] [citations omitted]; see People v Abdullah, 28 AD3d 940, 941 [2006], lvs denied 7 NY3d 784 [2006]).

2019Despite the Antommarchi violation, the majority concludes that reversal is not required because there was no possibility that "defendant's presence at [the sidebar conference] could . . . have afforded any meaningful opportunity to affect the outcome" ( People v Davidson , 89 NY2d 881, 882 [1996]; see People v Roman , 88 NY2d 18, 26 [1996], rearg denied 88 NY2d 920 [1996]).

2019Despite the Antommarchi violation, the majority concludes that reversal is not required because there was no possibility that "defendant's presence at [the sidebar conference] could . . . have afforded any meaningful opportunity to affect the outcome" ( People v Davidson , 89 NY2d 881, 882 [1996]; see People v Roman , 88 NY2d 18, 26 [1996], rearg denied 88 NY2d 920 [1996]).

2000In that instance, defendant may be deemed to have been deprived of the opportunity to provide “valuable input regarding his attorney’s discretionary decision” (People v Davidson, supra, at 883 ; see generally, People v Sloan, supra, at 392).

2000In that instance, defendant may be deemed to have been deprived of the opportunity to provide “valuable input regarding his attorney’s discretionary decision” (People v Davidson, supra, at 883 ; see generally, People v Sloan, supra, at 392).

1994The rule involved State statutory law because its protection is broader than the constitutional right to be present at trial (see, People v Morales, supra; People v Mullen, 44 NY2d 1 [1978]).

1994The rule involved State statutory law because its protection is broader than the constitutional right to be present at trial (see, People v Morales, supra; People v Mullen, 44 NY2d 1 [1978]).

2019Despite the Antommarchi violation, the majority concludes that reversal is not required because there was no possibility that "defendant's presence at [the sidebar conference] could . . . have afforded any meaningful opportunity to affect the outcome" ( People v Davidson , 89 NY2d 881, 882 [1996]; see People v Roman , 88 NY2d 18, 26 [1996], rearg denied 88 NY2d 920 [1996]).

2019Despite the Antommarchi violation, the majority concludes that reversal is not required because there was no possibility that "defendant's presence at [the sidebar conference] could . . . have afforded any meaningful opportunity to affect the outcome" ( People v Davidson , 89 NY2d 881, 882 [1996]; see People v Roman , 88 NY2d 18, 26 [1996], rearg denied 88 NY2d 920 [1996]).

2019At that time, defendant had not yet waived—either expressly or by his conduct—the right to be present at sidebar conferences ( see People v Flinn , 22 NY3d 599, 601 [2014], rearg denied 23 NY3d 940 [2014]).

2019At that time, defendant had not yet waived—either expressly or by his conduct—the right to be present at sidebar conferences ( see People v Flinn , 22 NY3d 599, 601 [2014], rearg denied 23 NY3d 940 [2014]).

2003In accepting an Antommarchi waiver offered by defense counsel on a defendant’s behalf, a trial court need not engage the defendant in an on-the-record colloquy to ensure the requisite voluntary, knowing and intelligent nature of the waiver (see People v Spotford, 85 NY2d 593, 598 [1995]; People v Epps, 37 NY2d 343, 350-351 [1975]). “[T]here is no requirement that the Judge conduct a pro forma inquisition in each case on the off-chance that a defendant who is adequately represented by counsel . . . may nevertheless not know what he is doing” (People v Francis, 38 NY2d 150, 154 [1975]).

2003In accepting an Antommarchi waiver offered by defense counsel on a defendant's behalf, a trial court need not engage the defendant in an on-the-record colloquy to ensure the requisite voluntary, knowing and intelligent nature of the waiver ( see People v Spotford, 85 NY2d 593, 598 [1995]; People v Epps, 37 NY2d 343, 350-351 [1975]). "[T]here is no requirement that the Judge conduct a pro forma inquisition in each case on the off-chance that a defendant who is adequately represented by counsel . . . may nevertheless not know what he is doing" ( People v Francis, 38 NY2d 150, 154 [1975]).

2003Moreover, although the right is fundamental, it may be waived (see People v Vargas, 88 NY2d 363, 375-376 [1996]).

2003Moreover, although the right is fundamental, it may be waived ( see People v Vargas, 88 NY2d 363, 375-376 [1996]).

2003In accepting an Antommarchi waiver offered by defense counsel on a defendant’s behalf, a trial court need not engage the defendant in an on-the-record colloquy to ensure the requisite voluntary, knowing and intelligent nature of the waiver (see People v Spotford, 85 NY2d 593, 598 [1995]; People v Epps, 37 NY2d 343, 350-351 [1975]). “[T]here is no requirement that the Judge conduct a pro forma inquisition in each case on the off-chance that a defendant who is adequately represented by counsel . . . may nevertheless not know what he is doing” (People v Francis, 38 NY2d 150, 154 [1975]).

2003In accepting an Antommarchi waiver offered by defense counsel on a defendant's behalf, a trial court need not engage the defendant in an on-the-record colloquy to ensure the requisite voluntary, knowing and intelligent nature of the waiver ( see People v Spotford, 85 NY2d 593, 598 [1995]; People v Epps, 37 NY2d 343, 350-351 [1975]). "[T]here is no requirement that the Judge conduct a pro forma inquisition in each case on the off-chance that a defendant who is adequately represented by counsel . . . may nevertheless not know what he is doing" ( People v Francis, 38 NY2d 150, 154 [1975]).

2003In accepting an Antommarchi waiver offered by defense counsel on a defendant’s behalf, a trial court need not engage the defendant in an on-the-record colloquy to ensure the requisite voluntary, knowing and intelligent nature of the waiver (see People v Spotford, 85 NY2d 593, 598 [1995]; People v Epps, 37 NY2d 343, 350-351 [1975]). “[T]here is no requirement that the Judge conduct a pro forma inquisition in each case on the off-chance that a defendant who is adequately represented by counsel . . . may nevertheless not know what he is doing” (People v Francis, 38 NY2d 150, 154 [1975]).

2003In accepting an Antommarchi waiver offered by defense counsel on a defendant's behalf, a trial court need not engage the defendant in an on-the-record colloquy to ensure the requisite voluntary, knowing and intelligent nature of the waiver ( see People v Spotford, 85 NY2d 593, 598 [1995]; People v Epps, 37 NY2d 343, 350-351 [1975]). "[T]here is no requirement that the Judge conduct a pro forma inquisition in each case on the off-chance that a defendant who is adequately represented by counsel . . . may nevertheless not know what he is doing" ( People v Francis, 38 NY2d 150, 154 [1975]).

2003Although the right to be present at sidebar questioning need not be preserved by objection (see Antommarchi, 80 NY2d at 250 ; People v Dokes, 79 NY2d 656, 662 [1992]), a defendant alleging an Antommarchi violation must nevertheless present an adequate record for appellate review (see People v Kinchen, 60 NY2d 772 [1983]).

2003Although the right to be present at sidebar questioning need not be preserved by objection ( see Antommarchi , 80 NY2d at *48 250; People v Dokes, 79 NY2d 656, 662 [1992]), a defendant alleging an Antommarchi violation must nevertheless present an adequate record for appellate review ( see People v Kinchen, 60 NY2d 772 [1983]).