Defendant Implicitly and Explicitly Waived His Right to Be Present During Side-Bar Conferences

In a full-fledged opinion by Judge Smith, over a dissent, the Court of Appeals determined defendant had implicitly and explicitly waived his right to be present during side-bar conferences (the “Antommarchi” right). The implicit waiver was the defendant’s inaction after the trial judge informed him he was welcome to attend the side-bar conferences. And the explicit waiver was defense counsel’s statement to the judge, which was made outside the hearing of the defendant, that the defendant has waived his right to attend the conferences:

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. People v Flinn, 20, CtApp 2-25-14