People v. Burton
| Decision Date | 13 April 2016 |
| Docket Number | 2014-00083, Ind. No. 826/12. |
| Citation | 2016 N.Y. Slip Op. 02847,30 N.Y.S.3d 182,138 A.D.3d 882 |
| Parties | The PEOPLE, etc., respondent, v. Damien BURTON, appellant. |
| Court | New York Supreme Court — Appellate Division |
Matthew W. Brissenden, Garden City, N.Y., for appellant, and appellant pro se.
Madeline Singas, District Attorney, Mineola, N.Y. (Jason R. Richards and Donald Berk of counsel), for respondent.
RANDALL T. ENG, P.J., CHERYL E. CHAMBERS, SHERI S. ROMAN, and BETSY BARROS, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Honorof, J.), rendered December 5, 2013, convicting him of criminal possession of a weapon in the second degree (two counts), assault in the second degree, assault in the third degree, criminal possession of a weapon in the third degree, and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, on the law, and a new trial is ordered.
The People alleged that on April 20, 2012, the defendant fired a handgun at the complainant, striking him in the foot. The defendant proceeded to trial on charges of, inter alia, criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree, assault in the second degree, assault in the third degree, and reckless endangerment in the first degree.
Prior to the jury charge, the trial court indicated that anyone wishing to leave the courtroom should do so before the court began its instructions. The defendant, in the presence of the jury, remarked, “I would like to leave,” to which the court responded, “I bet you would.” After the People indicated that they were ready to proceed, the defendant repeated, three times, “This is not a fair trial,” and also stated that he was “incarcerated.” The court struck the defendant's remarks from the record, and instructed a court officer, “If he speaks again, officer, do what you need to do.” The court proceeded to deliver its charge, but was interrupted by the defendant. The transcript reflects the following exchange, which ultimately led to the defendant's removal from the courtroom:
The trial court continued with the charge in the defendant's absence. After the court finished instructing the jury, the defendant was permitted to return to the courtroom, and defense counsel moved for a mistrial based, inter alia, on “the procedure employed by the Court” in having the defendant “escorted out in handcuffs rather than excusing the jury and admonishing [the defendant] and giving him an opportunity to compose himself and be present during the jury charge.” The court denied defense counsel's motion. Following deliberations, the jury found the defendant guilty of two counts of criminal possession of a weapon in the second degree, assault in the second degree, assault in the third degree, criminal possession of a weapon in the third degree, and reckless endangerment in the first degree. The defendant appeals from the judgment of conviction, and we reverse.
Initially, the defendant's contention that he was prejudiced by the People's failure to properly disclose certain recordings of telephone calls the defendant made while incarcerated is unpreserved for appellate review (see People v. Davalloo, 39 A.D.3d 559, 560, 833 N.Y.S.2d 576 ) and, in any event, without merit.
Nevertheless, reversal and a new trial are required based upon the trial court's error in removing the defendant from the courtroom without first issuing a warning.
A defendant has a “fundamental constitutional right to be present at all material stages of a trial,” including “the court's charge, admonishments and instructions to the jury” (People v. Rivera, 23 N.Y.3d 827, 831, 993 N.Y.S.2d 656, 18 N.E.3d 367 ; see People v. Harris, 76 N.Y.2d 810, 812, 559 N.Y.S.2d 966, 559 N.E.2d 660 ; People v. Mehmedi, 69 N.Y.2d 759, 760, 513 N.Y.S.2d 100, 505 N.E.2d 610 ). However, “[a] defendant's right to be present during trial is not absolute,” and “[t]he defendant may be removed from the courtroom if, after being warned by the trial court, the disruptive conduct continues” (People v. Joyner, 303 A.D.2d 421, 421, 755 N.Y.S.2d 866 ; see Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 ; People v. Rivas, 306 A.D.2d 10, 11, 762 N.Y.S.2d 34 ; People v. Connor, 137 A.D.2d 546, 549, 524 N.Y.S.2d 287 ). CPL 260.20 provides, in relevant part, “that a defendant who conducts himself in so disorderly and...
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People v. Kluge
...The defendant's right to be present includes " ‘the court's charge, admonishments and instructions to the jury’ " ( People v. Burton, 138 A.D.3d 882, 883, 30 N.Y.S.3d 182, quoting People v. Rivera, 23 N.Y.3d 827, 831, 993 N.Y.S.2d 656, 18 N.E.3d 367 ). This right includes the defendant's ri......
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