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Split Fourth Department affirms gun conviction

Defendant did not attend meeting in judge's chambers

In a split decision, a state appeals court has affirmed a weapon conviction, despite the defendant’s absence from a meeting with the judge and both attorneys.

Defendant Eric D. Sharp was convicted of second-degree criminal possession of a weapon, and third-degree criminal possession of a weapon after a bench trial before state Supreme Court Justice Charles A. Schiano Jr. in November 2017.

In a 4-1 decision released Friday, the Appellate Division of state Supreme Court, Fourth Department, affirmed the verdict. Justice John M. Curran dissented.

Sharp’s appellate attorney, David R. Juergens, argued that Sharp was “denied his right to be present at a material stage of the trial when Supreme Court conducted an in-chambers and off-the-record conference in his absence at which there was discussion regarding the People’s previously submitted, written Sandoval application,” according to the decision.

The majority rejected that contention.

“Although defendant was not present at the in-chambers conference, the court held a subsequent proceeding in open court in defendant’s presence, at which the court offered defendant an opportunity to be heard on the People’s application. Defense counsel declined,” the court wrote.

“The court then made, and explained, its ruling on the People’s application. Under those circumstances, we conclude that defendant was afforded a meaningful opportunity to participate at the court’s subsequent de novo inquiry and his absence from the initial conference does not require reversal,” the majority wrote.

Juergens also argued that the statutes under which (Sharp) was convicted are unconstitutional, but that issue was not preserved for review, the majority ruled.

The court also rejected the defendant’s claim that the loss of video exhibits used as evidence in the trial deprived him of effective appellate review.

The majority ruled that the videos were not necessary to decide the issues raised on appeal.

Curran voted to reverse the conviction and grant a new trial “because, after improperly conducting a Sandoval hearing in his absence, (Schiano) did not give defendant an opportunity to meaningfully participate in the purported de novo Sandoval hearing it conducted in his presence.”

“In my view, the court’s mere offer to defense counsel of an opportunity to be heard on the Sandoval application in defendant’s presence … was insufficient to constitute a de novo hearing on the issue,” Curran wrote.

Sharp was denied his right “to be present during proceedings that involve factual matters for which the defendant possesses peculiar knowledge of the salient facts,” Curran wrote.

Before the trial, Schiano held an off-the-record conference in chambers where the Sandoval issue was addressed by both sides, but Sharp was not present.

Later, on the record, with Sharp present, Schiano told Sharp’s lawyer that he was ready to make a ruling on the Sandoval issue and “cursorily” asked him if he wanted to be heard,” Curran wrote.

The attorney declined, saying he would “stand by our discussion in chambers.”

Schiano did not ask the prosecutor for input on the Sandoval application at that time, and the prosecutor did not offer anything.

“In short, neither party reasserted their position on Sandoval on the record at the court’s invitation. At that point, the court merely proceeded to state its decision on the Sandoval application,” Curran wrote.

He wrote that the “purported de novo hearing … did not provide defendant with a meaningful opportunity to participate in the Sandoval hearing.”

The prosecutor failed to provide information about the convictions he intended to use, and Sharp’s trial attorney never questioned the use of it.

“The record demonstrates that the court’s ultimate Sandoval ruling was based entirely on the discussion in chambers, conducted outside of defendant’s presence,” Curran wrote.

“I also respectfully disagree with the majority’s conclusion that the court made its Sandoval ruling during the purported de novo hearing conducted in defendant’s presence. The record of the court’s ruling is equivocal on that point, and we will never know what occurred in chambers precisely because that conference was held off the record,” Curran wrote.

“Ultimately, the equivocal nature of the record only bolsters my conclusion that the court’s mere offer to defense counsel to be heard on the Sandoval application was insufficient to cure the error in conducting the off-the-record colloquy outside of defendant’s presence, thereby requiring a new trial,” he wrote.

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