People v. Chambliss

Decision Date18 August 1980
PartiesThe PEOPLE of the State of New York v. Wayne CHAMBLISS, Defendant.
CourtNew York County Court

Carl A. Vergari, Dist. Atty., White Plains, for plaintiff.

Stephen J. Pittari, White Plains, for defendant.


The first impression issues before the Court are whether a defendant in a criminal proceeding has a right to waive his personal appearance at a preliminary felony hearing (CPL § 180.60) and if such right exists, are sanctions appropriate for arbitrary denial of that right, to wit, suppression of the use of such identification as may occur at such hearing by the People during their case-in-chief during trial. As indicated below, this Court finds that a defendant in a criminal proceeding has a right pursuant to CPL § 180.60(2) and Federal and State constitutional guarantees to waive personal presence at such hearing as long as it is determined by the local court justice that he does so knowingly, intelligently and voluntarily and that a violation of such rights will subject any later attempted use in court of an identification procured at such hearing to suppression under CPL § 60.30, pursuant to the provisions of CPL §§ 710.20(5) and 710.60.

Defendant has been indicted by the Westchester County Grand Jury for the crimes of Attempted Robbery in the First Degree (Penal Law § 160.15(3); § 110.00). Following his initial arrest of February 5, 1980, and an identification on that date and February 6, 1980, a preliminary felony hearing (CPL § 180.60) took place in the City Court of White Plains, New York, on March 11, 1980, 35 days after the alleged crimes.

The following is a partial transcript of the Felony Hearing:

"THE COURT: People against Wayne Chambliss.

MR. VOLPER: The defense is ready. We would respectfully request the Court to waive my client's appearance in order to prevent a suggestive show-up proceeding.

THE COURT: Denied. People v. Washington, I'll follow. (See infra).

(Direct examination of the People's witness)

Q. And this individual who held this object, do you see him present in the court today?

A. I do.

Q. Would you point him out for the court?

A. This gentleman in the brown suit. (Pointing)

MR. McMILLIAN: Could the record reflect the witness identified the defendant.


MR. VOLPER: Could the record reflect he's sitting next to his attorney at counsel table?

THE COURT: Yes, sir."

. . . (Hearing Transcript pp. 2, 5, 6)

The initial question is whether defendant's presence is mandated at a felony hearing. "(T)he primary purpose of the proceedings upon (a) felony complaint is to determine whether the defendant is to be held for the action of a Grand Jury . . . (and) the defendant has a right to a prompt hearing upon (such) issue . . . but he may waive such right." CPL § 180.10(1)(2). If defendant waives his right to a felony hearing, the local court may either transfer the matter to the superior court for the action of a Grand Jury or make a determination whether to dismiss the complaint or to have it possibly "reduced" to non-felony offense pursuant to CPL § 180.30 and 180.50.

While there is no constitutional right to a preliminary hearing (Cf. People ex rel. Hirschberg v. Close, 1 N.Y.2d 258, 152 N.Y.S.2d 1, 134 N.E.2d 818; People v. Aaron, 55 A.D.2d 653, 390 N.Y.S.2d 157; People v. Abbatiello, 30 A.D.2d 11, 289 N.Y.S.2d 287; People v. Dash, 95 Misc.2d 1005, 409 N.Y.S.2d 181; Matter of Friess v. Morgenthau, 86 Misc.2d 852, 854, 383 N.Y.S.2d 784; People v. Carter, 73 Misc.2d 1040, 343 N.Y.S.2d 431; People v. Belmont, 48 Misc.2d 1057, 266 N.Y.S.2d 752), Article 180 of the CPL gives a defendant a statutory right thereto. However, the District Attorney also has statutory authority to present evidence to a Grand Jury independent of defendant's right to a felony hearing and the failure to afford such a hearing does not vitiate the later indictment. CPL § 190.55(2)(c). People ex rel. Hirschberg v. Close, supra; People v. Tornetto, 16 N.Y.2d 902, 264 N.Y.S.2d 557, 212 N.E.2d 63, cert. den. 383 U.S. 952, 86 S.Ct. 1215, 16 L.Ed.2d 214; People v. Dash, supra; People v. Jackson, 48 Misc.2d 1026, 266 N.Y.S.2d 481. The People however, did not exercise their discretion under CPL § 190.55(2)(c) and the defendant's statutory right to such a hearing remained in effect.

Defendant's attempt to waive his right to appearance at the hearing was predicated upon CPL § 180.60(2): "The defendant may as a matter of right be present at such hearing." (emphasis added)

In an analogous situation it is noted that CPL § 260.20 states that "(a) defendant must be personally present during trial of an indictment" (emphasis added). Such "statute's purposes are two: to prevent the ancient evil of secret trial (People v. Thorn, 156 N.Y. 286, 50 N.E. 947) and to guarantee the defendant's right to be present at all important stages of his trial" (People ex rel. Lupo v. Fay, 13 N.Y.2d 253, 256, 246 N.Y.S.2d 399, 400, 196 N.E.2d 56, 58, cert. den. 376 U.S. 958, 84 S.Ct. 979, 11 L.Ed.2d 976). As "the statute is designed for the protection of the defendant, our courts have interpreted the mandatory language of CPL § 260.20 to allow the defendant to waive such personal appearance (People v. Epps, 37 N.Y.2d 343, (372 N.Y.S.2d 606, 334 N.E.2d 566) (cert. den. 423 U.S. 999, 96 S.Ct. 430, 46 L.Ed.2d 374))." People v. Huggler, 50 A.D.2d 471, 378 N.Y.S.2d 493 (3rd Dept.) (emphasis added) See also People v. Aiken, 45 N.Y.2d 394, 397, 408 N.Y.S.2d 444, 380 N.E.2d 272; Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 253, 56 L.Ed. 500; Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 332, 78 L.Ed. 674; Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353; Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103; Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174; Tacon v. Arizona, 410 U.S. 351, 93 S.Ct. 998, 35 L.Ed.2d 346. Accord; People v. Burts, 64 A.D.2d 283, 409 N.Y.S.2d 862 (4th Dept.); People v. Freeman, 64 A.D.2d 715, 407 N.Y.S.2d 528 (2nd Dept.); People v. Montez, 65 A.D.2d 777, 410 N.Y.S.2d 8 (2nd Dept.); Root v. Kapelman, 67 A.D.2d 131, 414 N.Y.S.2d 707 (1st Dept.), leave to appeal den. 47 N.Y.2d 706, 417 N.Y.S.2d 1026, 391 N.E.2d 305, not to reargue den. 47 N.Y.2d 801; People v. Davis, 99 Misc.2d 844, 417 N.Y.S.2d 429; People v. Thomas, 97 Misc.2d 845, 412 N.Y.S.2d 752; People v. Piazza, 92 Misc.2d 813, 401 N.Y.S.2d 371; People v. Hicks, 90 Misc.2d 609, 395 N.Y.S.2d 577; Cf. People v. Anderson, 16 N.Y.2d 282, 266 N.Y.S.2d 110, 213 N.E.2d 445.

Thus, our courts have, by going to the rationale for a rule which even states that a defendant "must " be present during a trial, determined that as the rule is for the benefit of the defendant (not the People), he may waive such personal appearance as long as he does so "knowingly, voluntarily, and intelligently." People v. Epps, 37 N.Y.2d 343, 350, 372 N.Y.S.2d 606, 334 N.E.2d 566; Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461.

The People, however, argue that the situation is different for the "rights" of a criminal defendant at a felony hearing. The People state:

"Nor can it be said that the 'right' to waive personal appearance at a preliminary hearing is either expressly or implicitly afforded by (CPL § 180.60(2)) . . . In substance, the statute imports only that the criminal defendant cannot under normal circumstances be excluded from his preliminary hearing. Absent from this statutory provision is express language which would give the defendant the privilege or affirmative right to waive his personal appearance at the preliminary hearing. In virtually every other instance in which the Legislature intended that such a privilege exist, specific language was provided therefore (See CPL § 170.10(1)(b); 340.20(2)(a); 340.50(2); 380.40(2) and 440.30(5)."

Such argument is a paraphrase of a local recent decision in People v. Washington, Ind. No. 79-00794-01, 2/7/80, Westchester County Court (Couzens, J.), in which it was further stated: "While (CPL § 180.60(2)) may be susceptible of the interpretation that the choice lies with the defendant as to whether to appear at the hearing, that choice does not in fact lie with him . . . Certainly, the Legislature could have quite easily included a similar provision (of waiver) thus giving the defendant the express right of waiver but they did not. Id. at 6-7.

This Court must again respectfully disagree with the decision in People v. Washington, supra. See People v. Smith et al., Co.Ct., 426 N.Y.S.2d 420. By simply reversing such an argument, it might also be said that using the word "may" in CPL § 180.60(2), instead of the mandatory "must" as it did in the more clearly analogous CPL § 260.20, a clear distinction was made by the Legislature, giving the defendant the absolute right to be present at his choice rather than by the now discredited interpretation of CPL § 260.20, requiring a defendant's presence. See Mauer v. People, 43 N.Y. 1, now superseded by People v. Epps, supra.

For the People to concede that the defendant can waive his right to be physically present during the trial on the merits of a criminal case, yet argue that he cannot do so at a hearing where the burden of proof is lesser and the issues so narrow is, at best, anomalous. Had the Legislature even chosen to use the word "must" instead of the permissive, "may", it is clear that the purpose of the statute is to guarantee the rights of the defendant and not to impose the obligation of physical presence. Cf. People v. Epps, supra.

"Mandatory effect is given to permissive or discretionary words only when required by the context of the statute, the facts surrounding its enactment or the purpose sought to be served thereby," McKinney's Cons. Laws of New York, Book 1, Statutes § 177(b), otherwise words of discretion are treated as permissive. Id. § 177(a). The legislative history of CPL § 180.60(2) clearly...

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