Court rules waiver valid despite judge’s ‘welcome’

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A Jefferson County man convicted of attempted murder validly waived his right to be present during certain bench conferences even though he was “welcomed” to attend them and not told he had a right to be there, the Court of Appeals has ruled.

The majority found Gunther J. Flinn, 29, formerly of Alexandria Bay, implicitly and explicitly waived his right to be present during bench conferences at which prospective jurors were questioned, but Judge Jenny Rivera disagreed. She wrote a separate opinion, saying the judge’s  “welcome” was not enough to adequately inform Flinn of his right and that his conviction should have been reversed and a new trial granted.

She also expressed concern the ruling would render meaningless the court’s prior decisions regarding a defendant’s “fundamental right” to attend certain sidebar conferences under People v. Antommarchi, 80 NY2d, 247 [1992].

Flinn had been found guilty of second-degree attempted murder and other charges in connection with a July 2006 beating that seriously injured 21-year-old Jordan W. Culbertson, also of Alexandria Bay.

Culbertson died at age 23 on Feb. 3, 2009, before Flinn’s second trial. The Watertown Daily Times reported his death as a suicide.

The matter was prosecuted on appeal by Patricia L. Dziuba, senior assistant district attorney with the Jefferson County District Attorney’s Office, who was in court Tuesday and could not be reached for comment.

She had argued Jan. 14 that Flinn was aware he could approach the bench and chose not to do so and that his trial attorney had said he had discussed the right with Flinn and he was going to waive it and remain at counsel table.

Flinn was represented on appeal by Rochester attorney Martin P. McCarthy II of the Rochester firm Muldoon & Getz, who said the court effectively established a new rule equating welcome to exerting a right.

“That has far-reaching implications,” he said. “Can you imagine your Miranda warnings being conveyed as a welcome instead of a right? You’re welcome to remain silent; you’re welcome to an attorney. No court has ever held that.”

McCarthy said he anticipates filing a motion to re-argue to reiterate the fact the court made a new rule.

“I believe Judge Rivera articulates that this is a brand new rule,” he said. “I’ve not found any cases at all that equated welcome to right. There are none at all, so this is the first case of its kind. I think it’s important for them to know that. The majority doesn’t cite any cases for the proposition that welcome is the equivalent of conveying a right, because there are no cases on that.”

McCarthy had argued Flinn had an Antommarchi right to be at some of the bench conferences and rather than being welcomed to come up to the podium, the judge should have informed him his attendance was a right. He also argued Flinn’s waiver was not valid because it was made by his trial attorney, not in his presence and never put on record.

Judge Rivera agreed.

“The circumstances surrounding defense counsel’s attempted waiver on behalf of defendant provide an independent basis to reject such waiver’s legal sufficiency,” she wrote. “Until today, we have not recognized a defense counsel’s waiver of Antommarchi rights made outside of the defendant’s presence and without a subsequent confirmation made in open court. With good reason. Such a waiver lacks any recognition by the defendant and confirmation by the court that it reflects a voluntary, knowing and intelligent waiver of the right.”

In writing for the majority, Judge Robert S. Smith directly quoted Jefferson County Court Judge Kim H. Martusewicz who announced at Flinn’s hearing:

“If there are any conferences at the bench, I just remind everyone the defendant is welcome to attend them. I will leave that up to defense counsel and the defendant as to whether or not he wants to get up and attend any of those conferences.”

Judge Smith further noted a few minutes later, defense counsel told the judge, out of Flinn’s hearing, that he had discussed with his client his right to attend bench discussions and Flinn had waived that right.

“There is no indication in the record that defendant attended, or asked to attend, any of these conferences,” Judge Smith wrote, referring to void dire questioning regarding the qualifications of prospective jurors. “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.”

The Court of Appeals found the important point of the implicit waiver was that the defendant knew he could attend the conferences, not whether his opportunity was a right or a privilege.

It notes Flinn tried to distinguish his case from others in that his lawyer’s statement waiving his right was not made within his earshot.

As for the explicit wavier, the court cites People v. Velasquez, 1 NY3d 44 [2003] and People v. Keen, 94 NY2d 533 [2000], saying the premise of those cases is that a lawyer may be trusted to explain rights to his or her client.

“If that was not our assumption in those cases, we would not have found a valid waiver,” Judge Smith wrote. “We certainly did not rely on the client’s vigilance in listening to, or his diligence in correcting, his lawyer’s misstatements.”

Judge Rivera disagreed, saying Flinn’s waiver was not voluntary, knowing and intelligent. She said Flinn had a right to be present during any material stage of his trial and that a juror questioned outside of his presence who is empaneled or subjected to defense counsel’s peremptory challenge constituted reversible error.

“The majority considers it of no moment that, in this case, the court never used the legally familiar terminology associated with Antommarchi’s mandate; namely that defendant had a fundamental right he was entitled by statute to assert and that the court was obliged to recognize,” Judge Rivera wrote. “Instead, the majority is persuaded that the word ‘welcome,’ as used by the court, sufficiently apprised defendant of this statutory right. I cannot agree.

“Unlike a right, a welcome is a mere invitation, subject to revocation by the person who extended it. A right recognized as fundamental, such as the Antommarchi right, cannot be conveyed by a word or phrase that suggests that it is subject to revocation.”

Flinn had originally pleaded guilty to attempted second-degree murder as part of a plea agreement, in exchange for a six-year sentence.

That judgment was reversed by the Appellate Division, Fourth Department on March 20, 2009, when it found Flinn’s plea was not voluntary because it said Judge Martusewicz’s remarks were coercive when she told Flinn he would get a “substantially longer sentence” if he went to trial.

Flinn later rejected a similar plea offer and proceeded to trial in the fall of 2009 when a jury found him guilty of not only second-degree attempted murder, but first and second-degree assault and first-degree intimidating a witness. He was then sentenced to 15 years in prison and is housed at the Clinton Correctional Facility in Clinton County.

Flinn had also claimed his 15-year sentence was retaliation after his first conviction was reversed and he exercised his right to trial and, after being found guilty, was sentenced to more than twice the agreed upon six years in his previous plea deal.

McCarthy said the Court of Appeals did not address or even mention that claim.