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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.

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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

the court violated defendants' right to counsel by holding an in

camera proceeding without counsel present to discuss with the

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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,

Rose appeared after trial was adjourned and the People sent

investigators to look for him. The court questioned him in

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

body.

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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

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. 

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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

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

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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

credibility, including drug abuse" (id.). Therefore defendant's

right to counsel was not violated (id.). The Appellate Division

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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

parte proceeding was substantially justified during the court's

review of a rape victim's notes that described an erotic

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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

substantive issues for trial are being discussed, the Court

stressed that "ex parte hearings are not to be granted lightly

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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

exclusion of the defendant from a proceeding testing the

competency of two child witnesses in a sexual abuse case, holding

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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.). 

The denial of the right to counsel at trial "is of

constitutional dimension" and is not subject to harmless error

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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-tocounsel 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,

after which the trial judge interviewed him in camera without

counsel present, describing his appearance later as "tired,"

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"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

court knew that there was serious reason to doubt the veracity of

Mr. Rose's migraine explanation because the court asked him

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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 crossexamination (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). 

Accordingly, in each case, the order of the Appellate

Division should be reversed and a new trial ordered. 

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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

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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

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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

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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

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