This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 26
The People &c.,
            Respondent,
        v.
Lee Carr,
            Appellant.
-----------------------
No. 27
The People &c.,
            Respondent,
        v.
Walter Cates, Sr.,
            Appellant.




Case No. 26:
          Andrew C. Fine, for appellant.
          Melanie A. Sarver, for respondent.

Case No. 27:
          Bruce D. Austern, for appellant.
          Melanie A. Sarver, for respondent.




LIPPMAN, Chief Judge:
          The primary issue presented by these appeals is whether

                              - 1 -
                               - 2 -                    No. 26, 27

the court violated defendants' right to counsel by holding an in
camera proceeding without counsel present to discuss with the
People's main witness the witness's mental and physical ability
to testify.   Because, under these facts, the witness's mental and
physical health were inextricably tied to his credibility, a
nonministerial issue for trial, we hold that the court violated
defendants' right to counsel by denying defense counsel access to
the proceeding.
           Codefendants Lee Carr and Walter Cates, Sr., were
convicted of second-degree murder for acting in concert with
three others to kill Matharr Cham, who was beaten and strangled.
It was Gary Rose who was the People's main witness.   For thirty
years, Rose had been a regular user of crack cocaine and
methadone, and he leased the apartment where the murder took
place.   At trial, Rose testified that he was in the apartment
when Carr and Cates, Sr., beat Cham, strangled him, and placed
his body in the bathtub; that defendant Carr told him to stay in
his room; that he dozed off before hearing muffled sounds in the
other room where Cham had been sitting, and later saw Cham's body
in the bathtub with an extension cord tied around his neck.*
Carr and Cates, Sr., contended that the others had killed Cham.
           During trial, Rose failed to appear twice, first on
April 22, 2009, and again on April 27, 2009.   The first time,


*
  Surveillance video shows Cates, Sr. helping to dispose of the
body.

                               - 2 -
                                 - 3 -                     No. 26, 27

Rose appeared after trial was adjourned and the People sent
investigators to look for him.    The court questioned him in
camera to determine why he was late.     The substance of that first
discussion is mostly unknown.    Defense attorneys requested that
they be present during any potential, future proceeding with the
witness to discuss the reasons for Mr. Rose's failure to appear,
that any records of medical attention given to the witness be
disclosed because of the witness's history of abusing drugs, and
that the proceedings be transcribed.     Instead, after Gary Rose
failed to appear the second time, the court held an in camera,
off-the-record discussion with the witness to ascertain the
extent of the witness's illness and when he would be able to
testify.   Supreme Court relayed the discussion to defense
counsel, stating that the witness was "in bad shape," that he was
suffering from a migraine and needed a half day to recover, and
that he denied he was suffering from alcohol abuse or affected by
crack cocaine, stating:
           THE COURT: For the record, on Wednesday
           shortly after I dismissed the juries, we got
           word that Mr. Gary Rose, who was supposed to
           be here first thing Wednesday, arrived . . .
           I asked the People to have him brought over
           here to find out why he was late . . . He
           seemed to be in bad shape . . . This
           morning, I've received a phone call from [the
           prosecutor] stating that although Mr. Rose
           was here, he was in no condition to testify.
           We had a discussion among the DA and the
           defense lawyers at the bench. I've
           instructed everyone that I was going to speak
           to him in camera which I did off the record
           . . . this morning. He informed me that he
           suffers from migraines [and] that he needed a

                                 - 3 -
                               - 4 -                      No. 26, 27

          half a day to recover. And I asked him if he
          was on drugs. He said, no. I asked him if
          he was suffering from any alcohol problem.
          He said, no. I asked him if he's on crack.
          He said, no. And he said he would be ready
          to go tomorrow . . .
          [WALTER CATES' COUNSEL]: . . . I think the
          Court agrees that there was an [sic]
          unanimous decision of the three defense
          lawyers that we wish[ed] to be present with
          our clients when the Court did the inquiry of
          Mr. Rose. When that was denied, we wish[ed]
          that the inquiry by the Court go on the
          record which was also denied. This was a
          request before the Court conducted the
          independent inquiry . . . We were made aware
          today of the Court's inquiry from Wednesday.
          If that was on the record, as well, we would
          like copies of that transcript . . . We would
          like to know what excuses he gave for not
          showing up on that day . . . Mr. Rose
          indicated he was a regular user of Methadone
          and a regular user of crack cocaine.
          Carr's counsel joined in the objection, after which
Supreme Court responded:
          THE COURT: . . . I don't think there is any
          legal requirement for my discussions with him
          on . . . Wednesday or today to be on the
          record. Obviously, defense counsel will
          . . . have a full range of cross examination.
          They can cross why he wasn't here . . . the
          jury is going to find out that we've been
          sitting around waiting for him.
          . . .
          [WALTER CATES'S COUNSEL]: The District
          Attorney argues . . . that the fact that he's
          not present is irrelevant to us . . . the
          People want to say that he was just late.
          . . . I dispute their characterization of
          that. . . .
          THE COURT:   Again, you can cross.
          [WALTER CATES'S COUNSEL]:    I don't know

                               - 4 -
                              - 5 -                       No. 26, 27

          anything about it . . . The District
          Attorney's office interviewed him. The Court
          spoke to him. I have no records of either of
          this. If he gets on the stand and says
          something different from either what he told
          them or told you . . . Only the Court would
          know and only the DA's Office will know . . .
          THE COURT: Yeah. But I told you that he
          [had] a . . . migraine. And he needed 12
          hours to recover . . . He also said he was
          not on any drugs or alcohol today.
          [WALTER CATES'S COUNSEL]: Did he say last
          Wednesday he had a migraine?
          THE COURT: . . . I didn't ask him about his
          physical condition last Wednesday.
          [WALTER CATES'S COUNSEL]: In the Court's
          opinion, this morning, you thought last
          Wednesday . . . he looked worse[?] Did he
          look tired?
          THE COURT: He looked tired, disheveled and
          much more hyper than he is today.
          [WALTER CATES'S COUNSEL]: Like someone who
          might be withdrawing from Methadone?
          THE COURT: I can't say . . . It's not fair
          for me to say."
          The Appellate Division affirmed defendant Carr's
conviction, discounting the significance of the in camera
proceeding involving Gary Rose.   It concluded that it "was not a
hearing, nor part of the trial, and it did not involve the
determination of any issue requiring input from defendant or his
counsel" (People v Carr, 111 AD3d 472, 472 [1st Dept 2013]).    The
Court found that defendant Carr was not prejudiced by the
conference being unrecorded nor was he impaired in his "ability
to cross-examine this witness about all matters relating to his

                              - 5 -
                               - 6 -                      No. 26, 27

credibility, including drug abuse" (id.).   Therefore defendant's
right to counsel was not violated (id.).    The Appellate Division
separately affirmed Cates's conviction (People v Cates, 92 AD3d
553 [1st Dept 2012]).
          A Judge of this Court granted leave to appeal (23 NY3d
1019 [2014]; 22 NY3d 1155 [2014]) and we now reverse the orders
in each case and remit for new trials.
          Absent a substantial justification, courts must not
examine witnesses about nonministerial matters in camera without
counsel present or ex parte (see People v Contreras, 12 NY3d 268,
273 [2009]; People v Goggins, 34 NY2d 163, 173 [1974]).    "[A]n
in-camera examination of the witnesses, that is ex parte or
without the parties represented would, in our view, arguably
trifle with the constitutional right to confrontation and the
right to counsel" (Goggins, 34 NY2d at 169).   A "defendant's
right to the full benefit of the adversary system should not be
denied, nor qualified by impairing his right by interposing the
'neutral' Judge to assess whether the disclosure is relevant or
material" (id.).   Goggins concerned a defendant's right to
disclosure of an informant's identity, and this Court held that
where the information "relates to a substantive issue in the
case, the disclosure should not be ex parte or without either
party present even if in camera" (id. at 173).
          "[E]x parte proceedings are undesirable, and they
should be rare" (Contreras, 12 NY3d at 273).   In Contreras, an ex


                               - 6 -
                               - 7 -                     No. 26, 27

parte proceeding was substantially justified during the court's
review of a rape victim's notes that described an erotic
relationship the victim was having with someone other than the
defendant, the victim's husband (see id. at 271).   Because of the
inflammatory and private nature of the notes, and the fact that
they would likely fall under the protection of the Rape Shield
Law, the court held an ex parte proceeding to determine first if
they were Rosario or Brady material, during which the court
confirmed the notes were irrelevant (see id.).   After finding
that the victim "might have been warranted in fearing worse than
embarrassment if the contents of the document had been
communicated to defendant" because the notes revealed a romantic
relationship with another man, the "initial consideration of the
question must be ex parte, almost by its nature" as "the court
can hardly disclose the document before deciding whether to order
it disclosed" (id. at 273).   There, the "hearing was not only
noncritical, but, as a matter of law, unnecessary," and thus the
ex parte nature of the proceeding was both justified by the
irrelevant information discussed and by the safety concerns of
the victim (id.).
           In People v Frost, the court excluded defense counsel
from a pretrial hearing to decide the People's motion to mask the
identities of witnesses and also from four proceedings to
determine whether the courtroom should be closed to protect
witnesses' identities (100 NY2d 129, 132-133 [2003]).    Where


                               - 7 -
                               - 8 -                     No. 26, 27

substantive issues for trial are being discussed, the Court
stressed that "ex parte hearings are not to be granted lightly
and are unwarranted and impermissible in the vast majority of
cases" (id. at 134).
          In People v Vargas, this Court upheld the exclusion of
defense counsel from a conference to discuss a potential juror's
fear of the defendant prior to voir dire (88 NY2d 363 [1996]).
There, the trial court evaluated the juror's fear for his safety
outside the presence of defense counsel and found it to be
genuine (see id. at 379).   In People v Castillo, an informant's
fear justified the court's ex parte proceeding to determine
whether to disclose the informer's identity or statements (80
NY2d 578, 586 [1992], cert denied 507 US 1033 [1993]).
          In People v Ortega, the trial court held a conference
properly described as an in camera proceeding by the Appellate
Division to request that a prosecution witness identify a
confidential informant (78 NY2d 1101, 1102 [1991]).    The
proceeding was closed to defense counsel and all parties, and no
record was taken "to show what was said in chambers or whether it
contributed to the court's decision that disclosure was not
required" (78 NY2d at 1102-1103).   Because the witness may have
"stated an unrebutted view of the facts which influenced the
[t]rial [c]ourt in reaching its subsequent decision," the Court
found the inquiry violated defendant's rights (id.).    In Kentucky
v Stincer, the United States Supreme Court permitted the


                               - 8 -
                                 - 9 -                   No. 26, 27

exclusion of the defendant from a proceeding testing the
competency of two child witnesses in a sexual abuse case, holding
that the exclusion did not violate the Confrontation Clause (482
US 730, 739-744 [1987]).    Critically, defense counsel was present
at the proceeding, asked questions, and the proceeding was
transcribed, which allowed defense counsel to repeat the same
questions during cross examination at trial (id. at 740).
          "[S]ince most constitutional rights are not
self-executing, the right to counsel may be the most basic of
all" (People v Hodge, 53 NY2d 313, 317 [1981]).   "[I]n criminal
cases in particular we have called for the highest degree of
vigilance in safeguarding the right of an accused to have the
assistance of an attorney at every stage of the legal proceedings
against him" (id. at 317-318 [quotation marks and citation
omitted]).   In Hodge, the trial court insisted that the defendant
proceed without retained counsel where defense counsel had not
arrived "after adequate time" to a preindictment preliminary
hearing (id. at 316-317).   The People asserted there that because
the defendant was subsequently indicted, there was no harm and
"any infirmities that occurred at the flawed hearing may be
excused" (id. at 319).   This Court responded that "the test must
be not what the hearing did not produce, but what it might have
produced if the defendant's right to counsel had not been
ignored" (id. at 321).   "[T]he result of such inquiry would have
to be pure speculation" (id.).


                                 - 9 -
                              - 10 -                    No. 26, 27

          The denial of the right to counsel at trial "is of
constitutional dimension" and is not subject to harmless error
analysis (Hodge, 53 NY2d at 320; People v Hilliard, 73 NY2d 584,
587 [1989]).   Courts should not delve into questions of prejudice
when assistance of counsel is involved (see People v Felder, 47
NY2d 287, 291 [1979]; Perry v Leeke, 488 US 272, 280 [1989]).    As
this Court recognized, "[t]he right to have the assistance of
counsel is too fundamental and absolute to allow courts to
indulge in nice calculations as to the amount of prejudice
arising from its denial" (Felder, 47 NY2d at 296 [quotation marks
and citation omitted]).   And as this Court held in Hodge, a
quantification of what impeachment material defense counsel might
have obtained at the proceeding cannot be dispositive (see 53
NY2d at 321), as harmless error does not apply in right-to-
counsel cases (see 488 US at 280).
          Here, the in camera proceeding clearly involved
substantive issues as opposed to ministerial matters and there
was no justification for excluding defense counsel.   Because the
discussion involved important issues for trial that might have
affected a "substantial right" of a party, defense counsels'
presence was required (see Rules Governing Judicial Conduct [22
NYCRR] § 100.3 [B] [6] [a]; Contreras, 12 NY3d at 273; Goggins,
34 NY2d at 173]).   Mr. Rose was the People's star witness.    When
he failed to appear the first time, the People dispatched
investigators to look for him.   He then appeared, two hours late,


                              - 10 -
                              - 11 -                     No. 26, 27

after which the trial judge interviewed him in camera without
counsel present, describing his appearance later as "tired,"
"disheveled," and "hyper."   When the trial judge conveyed the
content of his conversation to the defense attorneys, they all
requested to be present if and when the court interviewed the
witness again regarding his potential future absences.   Indeed,
they had a very good reason to suspect that the witness's
absences were caused by his use of crack cocaine and methadone,
which could potentially constitute impeachment material critical
to defendants' ability to defend.   That request was denied.   When
the witness failed to appear on the next court date, the judge
again interviewed him in camera and observed that he was in no
condition to testify.   The record belies the People's contention
that the second proceeding was a simple meeting to discuss
scheduling.   By the second interview, it was no longer a mere
scheduling matter.   The proceeding involved what caused Mr. Rose
to be in such "bad shape" that he failed to testify twice.
Unlike a "purely administrative, ministerial question" (see
dissenting op., at 3), the court's discussion with Mr. Rose
concerned potentially significant evidence that defense counsel
may have found useful during cross-examination at trial.    The
trial court should have been alerted to this possibility based on
Mr. Rose's suspicious and questionable appearance and demeanor,
of which the court took note, when he arrived several hours late
on the first day that he was scheduled to testify.   Indeed, the


                              - 11 -
                                - 12 -                   No. 26, 27

court knew that there was serious reason to doubt the veracity of
Mr. Rose's migraine explanation because the court asked him
whether he was "on drugs," "suffering from any alcohol problem,"
or was "on crack."
          As this Court held in Contreras and Goggins, courts
should rarely exclude defense counsel from a proceeding with a
witness where the court has reason to believe that the matter
falls outside of the permissible ex parte communications for
scheduling and administrative purposes, as it did here (see 12
NY3d at 273; 34 NY2d at 173).    If the dissent's characterization
of the in camera discussion were correct -- had the discussion
been merely about scheduling -- the Rules of Judicial Conduct
authorizing ex parte communications for scheduling or
administrative matters would apply, and the trial court would
have been acting within its discretion to manage its docket.    As
the in camera discussion concerned a witness's health (both
mental and physical) and credibility, issues the court knew
defense counsel would address during cross-examination of the
witness at trial, it was much more than a scheduling matter, and
it violated defendants' right to counsel for Supreme Court to
deny defense counsel physical access to the proceeding and to
refuse to create a record of the proceeding for use in cross-
examination (see Contreras, 12 NY3d at 273; Goggins, 34 NY2d at
173; Frost 100 NY2d at 134; Ortega, 78 NY2d at 1102; Stincer, 482
US at 745).


                                - 12 -
                             - 13 -                    No. 26, 27

          Accordingly, in each case, the order of the Appellate
Division should be reversed and a new trial ordered.




                             - 13 -
People v Lee Carr; People v Walter Cates, Sr.
Nos. 26 & 27




FAHEY, J. (dissenting):
            The trial court conducted an in camera interview with a
prosecution witness to ascertain whether his migraine was too
debilitating for him to testify that day.   The court granted an
adjournment, for a second time, and the witness testified the
next day.   Now, the majority, holding that this was reversible
error, grants defendants a new trial, because the interview
"concerned potentially significant evidence that defense counsel
may have found useful during cross-examination at trial"
(majority op at 11).   In my view, the in camera inquiry here was
permissible because it was merely ministerial.   Accordingly, I
dissent.
            Initially, I agree that it is appropriate for the Court
to consider precedents concerning ex parte hearings here, because
the in camera questioning of the witness occurred after the
prosecutor called the trial judge to inform him that the witness
was in her office but in no condition to testify, and it took
place in the absence of defense counsel.    However, the majority
strays far from those precedents.   In People v Frost (100 NY2d
129 [2003]), in which we upheld the closure of a courtroom
following an ex parte proceeding, we simply observed that "ex


                                - 1 -
                               - 2 -                  Nos. 26 & 27

parte hearings are not to be granted lightly and are unwarranted
and impermissible in the vast majority of cases" (id. at 134).
We noted that avoidance of ex parte hearings, while not always
required, is "the better practice" (id.).   More recently, we have
stated that "ex parte proceedings are undesirable, and they
should be rare" (People v Contreras, 12 NY3d 268, 273 [2009]).
Until today, we simply recommended that ex parte hearings remain
rare; now, for the first time, a showing of "substantial
justification" (majority op at 6) is required.
           This Court has never held that conducting an in camera
inquiry on a scheduling matter violates a defendant’s right to
counsel.   In fact, it tries to avoid that conclusion today, by
limiting its holding to in camera or ex parte inquiries "about
non-ministerial matters" (majority op at 6).   No party has the
right to control the scheduling of litigation.   That is the
court's prerogative.   Preventing trial courts from controlling
the scheduling of witnesses in camera will interfere with a
court’s exercise of its discretion to oversee the management of a
trial and ensure its fair and orderly conduct.   Indeed, the Rules
of Judicial Conduct expressly state that
           "[e]x 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

                               - 2 -
                               - 3 -                    Nos. 26 & 27

          the ex parte communication and allows an
          opportunity to respond" (22 NYCRR 100.3 [B]
          [6] [a]).
Here, notably, the trial court complied with 22 NYCRR 100.3,
promptly placing detailed information on the record about what
had occurred at the ex parte inquiry, and ensuring that defense
counsel was subsequently able to cross-examine the witness
extensively on matters relating to his credibility.
          No guidance is offered to trial courts as to when a
matter qualifies as ministerial.   The in camera inquiry in the
present case involved questioning on a purely administrative,
ministerial question: whether a witness was so ill, from a
migraine, that he would be unable to testify on a particular day.
As the Appellate Division noted, the trial court's "inquiry was
not a hearing, nor part of the trial, and it did not involve the
determination of any issue requiring input from defendant or his
counsel" (People v Carr, 111 AD3d 472 [1st Dept 2013]).     The
inquiry simply resulted in a witness's appearance being delayed
from one day to the next.   If this interview was not ministerial,
then nothing is.
          The attempt to defend classification of the trial
court's interview as non-ministerial by postulating that it
"concerned potentially significant evidence that defense counsel
may have found useful during cross-examination at trial"
(majority op at 11) fails because this may be said of any request
for adjournment.   Whenever one party seeks rescheduling of a


                               - 3 -
                                  - 4 -                       Nos. 26 & 27

witness's testimony, there is a potential that an inquiry into
the reasons will reveal information that the other party "may"
find "useful."    This test is so weak that it is no test at all.
            Competent counsel will now invariably argue that a
scheduling matter is not ministerial and that his or her client
has a right to know why the witness claims to be unable to
testify.    This will occur even when the witness's indisposition
relates to a trivial, personal and private condition.           This
decision creates a standard that will be impossible to
administer.    Commonly, the trial court will be forced to hold a
full-blown hearing to decide a matter that demands quick
resolution.    All parties to criminal litigation – not just the
prosecution but defendants as well – will suffer from this
cumbersome new process.
            I would affirm the order of the Appellate Division in
each case.
*   *   *     *   *   *   *   *    *      *   *   *   *   *      *     *   *
For Cases No. 26 and No. 27: Order reversed and a new trial
ordered. Opinion by Chief Judge Lippman. Judges Read, Rivera,
Abdus-Salaam and Stein concur. Judge Fahey dissents in an
opinion in which Judge Pigott concurs.


Decided April 2, 2015




                                  - 4 -
