People v. Carson

• Decision Date: 10 August 1979
• Citation: People v. Carson, 104 Misc.2d 281, 428 N.Y.S.2d 123 (N.Y. City Ct. 1979)
• Parties: The PEOPLE of the State of New York v. Denise CARSON, Defendant.
• Court: New York City Court

Page 123

428 N.Y.S.2d 123

104 Misc.2d 281

The PEOPLE of the State of New York v. Denise CARSON, Defendant.

Criminal Court of the City of New York, Bronx County.

Aug. 10, 1979.

Mario Merola, Dist. Atty., Bronx County, by Joseph Miano, for the people.

Leon Polsky, Legal Aid Society, New York City, for defendant; Jose R. Ortiz, New York City, of counsel.

JEROME M. BECKER, Judge:

On July 2, 1979, the defendant, Denise Carson, pleaded guilty to a violation of Penal Law Section 155.25, Petit Larceny, a Class A misdemeanor. The defendant was allowed to remain at liberty pending a pre-sentencing investigation. This Court informed the defendant that if she failed to appear on the day of sentencing, the Court would sentence her to a maximum sentence. The case was then adjourned to August 6, 1979 for sentencing.

On August 6, 1979, the date set for sentencing, the defendant failed to appear in Court. The District Attorney moved to sentence the defendant in absentia. Defense Counsel objected on the ground that the defendant had not waived her right to be present at sentencing and requested that a bench warrant be issued in order that the defendant be present for sentencing. This Court stated that as a prerequisite to entertaining the District Attorney's application to sentence the defendant in absentia, the District Attorney would have to demonstrate a good faith effort to locate the defendant. The case was then adjourned to August 10.

On August 10, 1979 the defendant was again absent. Defense Counsel made an application to remove himself from the proceeding in the event the Court was going to grant the application of the District Attorney to sentence the defendant in absentia. This court denied counsel's application. Detective Martinez, a member of the District Attorney's Detective Squad was present in court pursuant to the August 6 directive of this Court that the District Attorney demonstrate a good faith effort to locate the defendant.

Detective Martinez was duly sworn and the Court made inquiry as to his efforts to locate the defendant. Upon examination, Detective Martinez testified that pursuant to the investigation to locate the defendant, he had contacted the Bureau of Criminal Identification, the Bronx Warrant Squad, the Central Warrant Office, the Missing Persons Bureau, the F.B.I. prisoner list, the Bronx House of Detention, Rikers Island Correctional Facility, the Department of Legal Affairs, the departments of Correction for all Counties in New York State, the Medical Examiners Office and the City Morgue. None of those agencies had any record of the defendant nor any information as to the defendant's whereabouts. The Detective further testified that the Medical Examiner's Office had no information that the defendant had been admitted to any hospital. Detective Martinez contacted the Department of Social Services and was informed by the defendant's case worker that he had not seen the defendant since August of 1978. The Detective contacted acquaintances of Ms. Carson and neighbors at her last known address. These inquiries similarly provided no information as to the defendant's location.

This Court added that previous inquiry of defendant's drug counsellor revealed that the defendant had not been seen since her last Court date of July 2, 1979. Counsel for the defendant stated that he had had no communication with the defendant since July 2.

This Court after finding that the Office of the District Attorney had made a good faith effort to locate the defendant and that the defendant had voluntarily absented herself from the forum, sentenced the defendant in absentia.

THE LAW

The relevant section of the Criminal Procedure Law is section 380.40. Subsection (1) provides that in general the defendant must be personally present at the time sentence is pronounced. Subsection (2) sets out an exception to the above stated general rule:

"Where sentence is to be pronounced for a misdemeanor or other petty offense, the court may, on motion of the defendant, dispense with the requirement that the defendant be personally present. Any such motion must be accompanied by a waiver, signed and acknowledged by the defendant reciting the maximum sentence that may be imposed for the offense and stating that the defendant waives his right to be personally present at the time sentence is pronounced."

The governing New York law uniformly supports the position that an absconding defendant may be sentenced in absentia. In People v. Stroman, 36 N.Y.2d 939, 940, 373 N.Y.S.2d 548, 335 N.E.2d 853, 854 (1975), the Court of Appeals stated unequivocally that while "C.P.L. 380.40 (subdiv. 1) provides that 'defendant must be personally present at the time sentence is pronounced' in a felony case, the provision thereof may certainly be waived by a defendant . . . ." The example of waiver cited there by the Court was by obstreperous conduct. See also Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353; People v. Epps, 37 N.Y.2d 343, 372 N.Y.S.2d 606, 334 N.E.2d 566, and People ex rel. Lupo v. Fay, 13 N.Y.2d 253, 246 N.Y.S.2d 399, 196 N.E.2d 56, cert. denied, 376 U.S. 958, 85 S.Ct. 693, 13 L.Ed.2d 573.

Waiver to be present at sentencing can also be effected by a defendant who deliberately absents himself from the proceedings. People v. Brock, 48 A.D.2d 790, 369 N.Y.S.2d 154 (1st Dept. 1975). It is well settled that where an offense is not capital and where the accused is not in custody, that if after the trial has begun in his presence he deliberately absents himself, his actions do not nullify what has been done or prevent the completion of the trial, but on the contrary act as a waiver of his right to be present (see Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912); People v. La Barbera, 274 N.Y. 339, 8 N.E.2d 884 (1937); People v. Colon, 66 Misc.2d 956, 322 N.Y.S.2d 907 (1971). In People v. Brock, 48 A.D.2d 790, 369 N.Y.S.2d 154 (1st Dept. 1975), according to the brief filed by the Legal Aid Society in that case, the lower court there ruled that the defendant had deliberately absented himself from the court and thereby waived his right to be present at every stage of the proceeding. This Court upheld the sentencing in absentia, concluding that his absconding "was an effective waiver of defendant's right to be present during the trial and sentencing". Id.

The lower court opinions are directly on point, supporting the position that a defendant who absconds may be sentenced in absentia. In People v. Colon, 66 Misc.2d 956, 322 N.Y.S.2d 907 (Kings Co. S.Ct.1971), the Court held that a defendant waives his right to be present at sentencing by absconding, because "by his own wrong he has forfeited all right to question the judgement in any character of proceedings because entered in his willful absence." : Id. at 961, 322 N.Y.S.2d at 912. To the same effect is People v. Cordero, Misc., slip opin., December 11, 1978, a decision by Justice Harold Silberman of the Supreme Court of Bronx County.

Other jurisdictions have also held that the voluntary absence of a defendant at sentencing waives his right to be present. See, e. g. Byrd v. Ricketts, 233 Ga. 779, 213 S.E.2d 610 (1975), cert. denied, 422 U.S. 1011, 95 S.Ct. 2636, 45 L.Ed.2d 675; People v. Rife, 18 Ill.App.3d 602, 310 N.E.2d 179 (1974); State v. Kelly, 213 Kan. 237, 515 P.2d 1030 (1973); People v. White, 18 Cal.App.3d 44, 95 Cal.Rptr. 576 (1971).

The right to be present at sentence is not constitutionally required. Where the state courts, as New York, have construed state law to permit voluntary absence as a waiver of the right to be present at sentencing, due process is not violated. Byrd v. Hopper, 537 F.2d 1303, 1305 n. 3 (5th Cir. 1976).

The strongest authority for sentencing in absentia is the recent decision by the Appellate Division, First Department in which the court unanimously held that the defendant's fleeing from the jurisdiction constituted a waiver of his right to be present at sentencing, Matter of Root v. Kapelman, 67 A.D.2d 131, 414 N.Y.S.2d 707 (1979). At the same time the court laid down guidelines for the disposition of similar cases. Justice Sullivan speaking for the unanimous court stated that. . . . "while it is now axiomatic that a...