Majority
p. 217The People of the State of New York, Respondent, v Joseph Wigfall, Appellant. [643 NYS2d 331]
Appeal from the judgment, Supreme Court, New York County (Alvin Schlesinger, J.), rendered April 14, 1993, convicting defendant, after a jury trial, of attempted murder in the second degree, robbery in the first degree and assault in the first degree and sentencing him, as a second violent felony offender, to two consecutive terms of 121/2 to 25 years and a concurrent term of 71/2 to 15 years, respectively, unanimously held in abeyance and the matter remanded for a hearing as to whether defendant was present at the challenged sidebar conferences and, if not, whether there was a waiver of his right to be present.
The record, while supporting the argument that, in violation
p. 218
of People v Antommarchi ( 80 NY2d 247 ), defendant was not present at four sidebar conferences at each of which a prospective juror was questioned about his or her background and ability to weigh the evidence objectively, does not conclusively determine the fact. Nor does it resolve the issue of whether there was a waiver of defendant’s right to be present. In light of such a record, we remand for a resolution of these issues. We note, in passing, that this trial took place five months after Antommarchi had been decided and, presumably, all parties were aware of the current state of the law. Concur — Sullivan, J. P., Ellerin, Ross, Nardelli and Williams, JJ.
Cases cited
- People v. Antommarchi 80 NY2d 247 p. 218