DEFENDANT WAS NOT PRESENT AT AN OFF-THE-RECORD DISCUSSION OF THE ADMISSIBILITY OF PRIOR UNCHARGED OFFENSES; DEFENDANT WAS THEREFORE DEPRIVED OF HIS RIGHT TO BE PRESENT AT A MATERIAL STAGE OF HIS TRIAL.

The First Department, in a full-fledged opinion by Justice Feinman, determined defendant was deprived of his right to be present during a material stage of the trial and he was therefore entitled to a new trial and a new Molineux/Ventimiglia hearing concerning the admissibility of prior bad acts and uncharged offenses allegedly committed against his girlfriend. Defendant was charged with assaulting his girlfriend. A year before trial, a Molineux/Ventimiglia hearing was held in the defendant’s presence, but the judge never ruled on the admissibility of prior uncharged offenses. The trial was held before a different judge who conducted an off-the-record conference about the uncharged offenses at which defendant was not present. Although a written summary of the off-the-record conference was drawn up, the judge’s reasoning for allowing evidence of uncharged offenses was not stated in the summary. The First Department held defendant’s right to be present at a material stage of his trial had been violated:

…[T]he arguments on admissibility were conducted before two different judges, a year apart, and defendant was not present the second time, when the attorneys conferred with the judge who considered their arguments and made rulings. Furthermore, some of the discussions were not even recorded, occurring as they did in the trial judge’s chambers or robing room without a court reporter. … It is not clear, for instance, that the papers originally submitted to the hearing court were also submitted to the trial court, or whether the trial court considered them. Nor is it clear whether the trial court read the hearing transcript or conducted its own de novo hearing. Even if the trial court considered the same papers and read the hearing transcript, the record is silent as to what particular facts were emphasized at the hearing before the trial court, what the court’s concerns were, and its reasons for making its rulings. The informal pretrial hearing was not, therefore, a sort of reargument of purely legal issues at which defendant could have nothing to contribute … . Thus, it cannot be said with any degree of certainty that defendant’s presence at the pretrial Molineux/Ventimiglia hearing before the trial court would have been “useless, or the benefit but a shadow” … . People v Hoey, 2016 NY Slip Op 07150, 1st Dept 11-1-16

CRIMINAL LAW (DEFENDANT WAS NOT PRESENT AT AN OFF-THE-RECORD DISCUSSION OF THE ADMISSIBILITY OF PRIOR UNCHARGED OFFENSES; DEFENDANT WAS THEREFORE DEPRIVED OF HIS RIGHT TO BE PRESENT AT A MATERIAL STAGE OF HIS TRIAL)/MOLINEUX/VENTIMIGLIA HEARING (DEFENDANT WAS NOT PRESENT AT AN OFF-THE-RECORD DISCUSSION OF THE ADMISSIBILITY OF PRIOR UNCHARGED OFFENSES; DEFENDANT WAS THEREFORE DEPRIVED OF HIS RIGHT TO BE PRESENT AT A MATERIAL STAGE OF HIS TRIAL)MATERIAL STAGE OF TRIAL (CRIMINAL LAW, DEFENDANT WAS NOT PRESENT AT AN OFF-THE-RECORD DISCUSSION OF THE ADMISSIBILITY OF PRIOR UNCHARGED OFFENSES; DEFENDANT WAS THEREFORE DEPRIVED OF HIS RIGHT TO BE PRESENT AT A MATERIAL STAGE OF HIS TRIAL)