People v. Gunther Flinn


AD4 order dated September 28, 2012, affirming judgment of conviction. Decision below: 98 AD3d 1262, 951 NYS2d 605. Graffeo, J., granted leave December 20, 2012.


(1) Whether the defendant’s Antommarchi right to be present at sidebar voir dire was violated when defendant’s counsel waived that right for defendant outside of his presence. (2) The refusal to charge attempted assault one and second-degree assault as lesser-included-offenses of first-degree assault; whether there was a reasonable view of the evidence to support a theory of recklessness as opposed to intent. (Assigned counsel: Martin P. McCarthy II, c/o Muldoon & Getz, 144 Exchange Boulevard, Suite 402, Rochester, NY 14614.)

Issue before the Court: whether Flinn waived his Antommarchi rights where the trial judge before jury selection announced in his hearing that he would be “welcome” to attend any bench conferences and counsel then represented outside defendant’s hearing that he had discussed with his client his right to come up to the bench “during these discussions” and his client “waived that right.”



Held: Defendant waived his Antommarchi rights both implicitly and explicitly.  He implicitly waived the rights when he was invited to the bench but chose not to do so.  He explicitly waived his rights through counsel’s representation.


CAL observes: The case represents the Court’s willingness to trust defense counsel’s ability to “explain rights to his client and to report to the court the result of that discussion.”  Justice Rivera believed the record insufficient to demonstrate a knowing waiver of a fundamental right because the court’s description of the right was not sufficiently descriptive, as a “welcome is more properly left for informal gatherings than the courtroom, where a defendant’s future hangs in the balance” and counsel’s waiver outside his client’s presence could not cure this deficiency.