People v. Carr, 28 N.Y.3d 105 (2016)

An ex parte communication with a witness regarding a non-ministerial matter, without the presence of defense counsel, violates a defendant’s right to be present at trial and to confront witnesses.

Summary

The New York Court of Appeals reversed the defendant’s conviction, holding that the trial court committed reversible error when it conducted an in camera interview with a prosecution witness, in the absence of defense counsel, to determine if the witness’s migraine prevented him from testifying. The court found that this ex parte communication, concerning a potentially significant issue regarding the witness’s ability to testify, violated the defendant’s constitutional right to be present at trial and to confront witnesses. The court emphasized that ex parte communications are undesirable and should be rare, and the inquiry was not ministerial. The dissent argued the interview was permissible because it was merely ministerial.

Facts

A prosecution witness informed the prosecutor that he was unable to testify due to a migraine. The trial judge, at the prosecutor’s request, conducted an in camera interview with the witness to assess his condition. Defense counsel was not present during this interview. The judge subsequently granted an adjournment, and the witness testified the following day. The defense argued that the ex parte communication violated their rights.

Procedural History

The defendant was convicted at trial. The Appellate Division affirmed the conviction. The New York Court of Appeals reversed the Appellate Division’s decision, ordering a new trial.

Issue(s)

1. Whether the trial court’s in camera interview with a prosecution witness, in the absence of defense counsel, violated the defendant’s right to be present and to confront witnesses.

Holding

1. Yes, because the ex parte communication concerned a non-ministerial matter that potentially affected the witness’s testimony and the defense’s ability to cross-examine. It denied the defendant the opportunity to participate in a critical stage of the proceedings.

Court’s Reasoning

The court held that the trial court’s in camera interview violated the defendant’s rights. The court found the trial court’s actions were not merely ministerial, but concerned potentially significant evidence that defense counsel may have found useful during cross-examination. The court referenced the rule that “ex parte proceedings are undesirable, and they should be rare.” The court also found the trial court had not met the requirements for ex parte communication under the Rules Governing Judicial Conduct which state that “ex parte communications that are made for scheduling or administrative purposes and that do not affect a substantial right of any party are authorized, provided the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and the judge, insofar as practical and appropriate, makes provision for prompt notification of other parties or their lawyers of the substance of the ex parte communication and allows an opportunity to respond” (22 NYCRR 100.3 [B] [6] [a]). The dissent argued that the trial court’s actions were ministerial and that the defendant’s rights were not violated.

Practical Implications

This case underscores the importance of defense counsel’s presence during any communication with witnesses that could affect the substance of their testimony, even if the communication appears related to scheduling. Attorneys should be vigilant about objecting to ex parte communications and insisting on their presence. The ruling emphasizes that trial courts must be cautious about conducting any discussions with witnesses outside the presence of all parties and their counsel. When the subject matter moves beyond purely administrative or scheduling matters, the defendant’s right to be present and to confront witnesses must be protected. This case strengthens the defendant’s rights in these situations. Later cases will likely cite this decision to challenge convictions where similar ex parte communications occur.