Split court affirms murder conviction

Listen to this article

In a split decision, the New York State Court of Appeals affirmed murder and robbery convictions in a case where the defendant was not present at sidebar conversations during jury selection.

The majority included Chief Judge Janet DiFiore and judges Michael Garcia, Madeline Singas and Anthony Cannataro. Judge Eugene Fahey wrote a dissenting opinion in which judges Jenny Rivera and Rowan D. Wilson concurred.

Defendant William A. Wilkins was convicted of second-degree murder and three counts of first-degree robbery. He was sentenced to 130 years to life in state prison.

Early one morning in August 2012, a group of customers formed a line outside a Gates store to buy sneakers that were being released for the first time that day.

Wilkins and a co-defendant had robbed several people in the line. One person, 19-year-old Montre Bradley, resisted and he was fatally shot. Wilkins and his co-defendant fled, but were later arrested.

During jury selection, after the judge asked whether any of the prospective jurors “had anything to add to the proceedings,” one person asked to approach the bench.

Wilkins had not yet waived his right to be included in sidebar conversations, but he later did so. The prospective juror said that her nephew was a defendant in a federal drug prosecution. Wilkins’ trial lawyer was in the sidebar.

The prospective juror was excused when the attorney for Wilkins’ codefendant exercised a peremptory strike.

“We conclude that the claimed error, under these unique circumstances, required defendant’s protest in the trial court given his acquiescence in the post-waiver voir dire of the prospective juror after being invited to express any objection that he may have had regarding the pre-waiver sidebar,” DiFiore wrote in the majority opinion.

“The court apprised defendant of his … rights in the middle of the voir dire,” DiFiore wrote. “Defendant immediately and explicitly waived those rights, a demonstration that he trusted his attorney to convey to him the information imparted at that sidebar without requiring his presence. He made no protest as to his absence from the pre-waiver sidebar conference,” she wrote.

“Defendant’s failure to object after being given the opportunity to do so is entirely consistent with his express waiver of the right to be present at such sidebars, trusting his counsel to act on his behalf while he personally witnessed the court’s and his counsel’s voir dire,” she wrote.

In a dissenting opinion, Fahey pointed out that four other sidebars were held before the judge advised Wilkins of his right to be present at the sidebars.

“Criminal defendants cannot implicitly waive a right that they do not know they have. To waive the right to attend sidebar conferences with prospective jurors, a defendant must be informed that the right to attend exists,” Fahey wrote.

“The court could have obtained an express, retroactive waiver from defendant on the record … That did not occur here,” he wrote.

[email protected] / (585) 232-2035