Notable Decisions and Other News


Court of Appeals: Violation of Defendant’s Right to be Present During a Supplemental Jury Instruction


On trial for second-degree murder and weapon possession, Mr. Rivera argued he acted in self-defense. During jury deliberations, it became clear that the jury was struggling to understand what self-defense meant.  The judge spoke to one juror alone in the robing room. Even though Mr. Rivera, defense counsel, the prosecutor, and the other jurors, were not present, the judge answered a series of the juror’s questions, including when the defendant could be deemed responsible “by the law.”  The court responded that this was a question of fact, and instructed the juror to “look at the evidence” and “evaluate what you’ve heard” in order to “make a decision.” 

Mr. Rivera was subsequently acquitted of murder and first-degree manslaughter, but convicted of weapon possession.  He was sentenced to 12 years in prison with 5 years post-release supervision.

In January 2013, the Appellate Division reversed and granted Mr. Rivera a new trial, holding that the robing room colloquy was error.  Judge Lippman granted the People leave to appeal.

Court of Appeals Decision

In a split 4-3 decision, the Court of Appeals affirmed, holding that the juror’s questions constituted a request for “further substantive instruction,” implicating Mr. Rivera’s fundamental constitutional right to be present at all material stages of his trial. A defendant’s absence during non-ministerial instructions to the jury affects the “mode of proceedings” of the trial. As such a fundamental error, that counsel didn’t object and instead consented to the judge’s procedure was irrelevant.

In a 12 page dissent, Judge Abdus-Salaam argued that the trial court had committed only a “de minimis” violation of Mr. Rivera’s right to be present because the judge’s response was essentially a “non-answer,” to which neither Mr. Rivera nor his attorney could have meaningfully contributed.

Kathleen Whooley briefed the case in the Appellate Division.  She also briefed and argued the case in the Court of Appeals