Antommarchi Waiver and Harmless‐Error Doctrine for Sidebar Exclusions Established in People v. Hoyt

1. Introduction

In People v. Hoyt (2025 NYSlipOp 02241), the Appellate Division, Third Department, addressed two fundamental criminal‐procedure issues: (1) the defendant’s right under People v. Antommarchi to be present at all material stages of trial, including bench conferences (“sidebars”) during jury selection, and (2) the standard for evaluating claims of ineffective assistance of counsel. The defendant, Adrian K. Hoyt, was convicted of rape in the first degree (2018 incident) and rape in the third degree (2016 incident) after a jury trial in Broome County. He appealed, challenging (i) his exclusion from early bench conferences prior to executing an Antommarchi waiver, (ii) the effectiveness of trial counsel, and (iii) the trial court’s refusal to consider his pro se post‐verdict CPL 330.30 motion. The Third Department affirmed, holding that the Antommarchi error was harmless because the jurors at issue were excused for cause, and that counsel’s performance was not deficient under the totality‐of‐the‐circumstances test.

2. Summary of the Judgment

The Appellate Division’s key holdings were as follows:

Antommarchi Right and Harmless Error: Hoyt was improperly excluded from sidebar conferences during voir dire before he knowingly waived his presence under Antommarchi, but this error was harmless because the jurors were excused for cause and the defendant could not have influenced the outcome.
Ineffective Assistance of Counsel: Hoyt failed to demonstrate that trial counsel’s performance fell below an objective standard of reasonableness or that any alleged errors deprived him of a fair trial. Strategic choices—opening statement length, questions in second round voir dire, cross‐examination decisions, and the lack of certain evidentiary offerings—were within counsel’s discretion.
Pro Se CPL 330.30 Motion: The court did not abuse its discretion in refusing to consider a belated, oral pro se motion to set aside the verdict when no papers were on file and Hoyt was represented by counsel.
Sentence Review: The consecutive sentences imposed under Penal Law § 70.25 were not unduly harsh or severe.

3. Analysis

3.1 Precedents Cited

People v. Antommarchi (80 NY2d 247 [1992]): Established the defendant’s statutory right under CPL 260.20 and due process to be personally present at all material stages of trial, including bench conferences during jury selection.
People v. Maher (89 NY2d 318 [1996]): Clarified that sidebar interviews with prospective jurors regarding bias or hostility are material stages of trial requiring defendant’s presence unless validly waived.
People v. Roman (88 NY2d 18 [1996]): Held that exclusion from bench conferences is harmless when the juror is excused for cause, since the defendant could not have influenced the outcome.
People v. Wilkins (37 NY3d 371 [2021]): Affirmed that an Antommarchi waiver may be express or implied, but must be voluntary, knowing, and intelligent.
People v. Burton (215 AD3d 1054 [3d Dept. 2023], lv denied 40 NY3d 927 [2023]): Reiterated the right to be present at all bench conferences as a material stage.
People v. Elliot (299 AD2d 731 [3d Dept. 2002]): Harmless‐error precedent where jurors were excused for cause at private sidebars.
People v. Lucious (269 AD2d 766 [4th Dept. 2000]): Similar holding on harmlessness of Antommarchi error.
People v. Flynn (233 AD3d 1087 [3d Dept. 2024]): Set forth the two‐prong test for ineffective assistance—deficient performance plus prejudice.
People v. Benevento (91 NY2d 708 [1998]): Recognized strategic decisions shield counsel from claims of ineffectiveness.
People v. Campbell (196 AD3d 834 [3d Dept. 2021], lv denied 37 NY3d 1025 [2021]): Emphasized assessing counsel’s performance in the totality of the circumstances.
People v. Williams (232 AD3d 1124 [3d Dept. 2024]): Reaffirmed meaningful representation standard.
People v. Moore (185 AD3d 1544 [4th Dept. 2020], lv denied 35 NY3d 1096 [2020]): Brief opening statements are not per se ineffective assistance.
People v. Taylor (156 AD3d 86 [3d Dept. 2017], lv denied 30 NY3d 1120 [2018]): On impeachment and strategic evidentiary decisions.
People v. Sonds (183 AD3d 919 [2d Dept. 2020]): Addressed pro se post‐verdict applications.
People v. Brisman (2025 NYSlipOp 00123): Confirmed appellate standard for reviewing the severity of consecutive sentences.

3.2 Legal Reasoning

The Third Department’s reasoning unfolds in two strands:

Antommarchi Right and Harmlessness:
- CPL 260.20 and Antommarchi guarantee the defendant’s presence at bench conferences to allow meaningful participation in juror challenges.
- Here, Hoyt was excluded from three sidebars in the first panel when four jurors disclosed histories of sexual abuse. This was pre‐waiver and therefore error.
- However, under Roman and Maher, exclusion is harmless if those jurors are excused for cause—because no strategic choice by counsel could have altered their removal. The error did not prejudice Hoyt’s jury composition.
- After voir dire of the first panel, the court explicitly informed Hoyt of his right to attend future sidebars; Hoyt’s acquiescence constituted an implied Antommarchi waiver for subsequent bench conferences.
Ineffective Assistance of Counsel:
- Under Strickland/Benevento, a defendant must show (a) counsel’s performance was objectively unreasonable and (b) prejudice resulted.
- Hoyt cited: brief opening statement; failure to question the second jury panel; limited cross‐examination; not offering certain impeachment documents; no separate jury instruction on consent for the first‐degree rape count.
- The court found each alleged deficiency could be explained as a strategic choice. Counsel aggressively attacked credibility, moved to dismiss one charge pretrial, barred a domestic‐violence expert, and argued for acquittal in summation.
- Regarding consent instructions, the indictment was under the forcible‐compulsion subsection requiring no separate consent charge beyond the standard instruction provided.
- No showing of a reasonable probability of a different outcome.
Pro Se CPL 330.30 Motion:
- CPL 330.30 cannot be entertained orally if no written motion is on file and defendant is represented. The court’s refusal was within discretion (Toland, Sonds).

3.3 Impact on Future Cases

People v. Hoyt reinforces and clarifies two enduring principles:

Even if a bench‐conference exclusion violates Antommarchi, appellate courts will deem it harmless where the excluded jurors are excused for cause. This limits new reversals based solely on sidebar absence when the jurors would not have served.
The decision underscores the deference courts grant to trial counsel’s strategic judgments under Benevento. Defendants alleging ineffective assistance must overcome a high threshold by showing both deficient performance and actual prejudice.

Practitioners should ensure that any Antommarchi waivers are explicitly recorded early in jury selection and that strategic choices by counsel are well‐documented on the record to fend off ineffectiveness claims.

4. Complex Concepts Simplified

Antommarchi Waiver: A defendant’s right to attend private bench conferences—waived only if the defendant knows the right and voluntarily gives it up, either in writing or orally on the record.
Harmless‐Error Doctrine: An error that does not require reversal if the appellate court believes beyond a reasonable doubt it did not affect the verdict’s fairness or outcome.
Ineffective Assistance of Counsel: A two‐part test requiring proof of unreasonable performance and resulting prejudice (Strickland standard).
CPL 330.30 Motion: A post‐verdict motion to set aside a verdict for legal errors or newly discovered evidence—must be in writing and filed before sentencing if the defendant remains represented by counsel.

5. Conclusion

People v. Hoyt consolidates the harmless‐error approach to Antommarchi violations where challenged jurors are excused for cause, and fortifies the presumption of counsel competence under Benevento. By affirming the judgments below, the Third Department signals that procedural rights—while vigorously protected—yield to practical prejudice analysis when errors did not alter trial fundamentals. For defense counsel and prosecutors alike, the decision highlights the importance of on‐the‐record waivers, clear strategic explanations, and timely post‐verdict applications to safeguard appellate review.