People v. Chiarenza

• Decision Date: 13 July 1990
• Citation: 163 A.D.2d 900,558 N.Y.S.2d 419
• Parties: PEOPLE of the State of New York, Respondent, v. Anthony A. CHIARENZA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 419

558 N.Y.S.2d 419

163 A.D.2d 900

PEOPLE of the State of New York, Respondent, v. Anthony A. CHIARENZA, Appellant.

Supreme Court, Appellate Division Fourth Department.

July 13, 1990.

Herald Fahringer, New York City, for appellant.

R. Michael Tantillo, Canadaigua, for respondent.

Before CALLAHAN, J.P., and DOERR, DENMAN, LAWTON and DAVIS, JJ.

MEMORANDUM:

On appeal from a judgment convicting him of criminal sale of a controlled substance in the first degree (see, Penal Law § 220.43[1] and criminal possession of a controlled substance in the first degree (see, Penal Law § 220.21[1], defendant contends that the suppression court committed reversible error when it conducted pretrial hearings in his absence. We agree.

It is well-established that a defendant has a statutory and constitutional right to be present at all critical stages of trial whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge (U.S. Const. 6th Amend.; N.Y. Const., art. I, § 6; CPL 340.50[1], 260.20; Snyder v. Massachusetts, 291 U.S. 97, 105-106, 54 S.Ct. 330, 332, 78 L.Ed. 674; People v. Ciaccio, 47 N.Y.2d 431, 436, 418 N.Y.S.2d 371, 391 N.E.2d 1347). The definition of "trial" encompasses pretrial hearings on motions to suppress evidence (People v. Anderson, 16 N.Y.2d 282, 286-287, 266 N.Y.S.2d 110, 213 N.E.2d 445; People v. Gaines, 144 A.D.2d 941, 534 N.Y.S.2d 257). Although a defendant may waive the right to be present (Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500; People v. Byrnes, 33 N.Y.2d 343, 352 N.Y.S.2d 913, 308 N.E.2d 435), such waiver "must be tested according to constitutional standards" (People v. Parker, 57 N.Y.2d 136, 140, 454 N.Y.S.2d 967, 440 N.E.2d 1313). Thus, the issue is whether "defendant knowingly, voluntarily and intelligently relinquished his known right" (People v. Parker, supra, at 140, 454 N.Y.S.2d 967, 440 N.E.2d 1313). "A defendant must be informed in some manner of the nature of his right to be present and the consequences of a failure to appear (People v. Gaines, supra, 144 A.D.2d at 941, 534 N.Y.S.2d 257).

Here, the record does not reflect that defendant was informed of the date of the pretrial hearings. Further, there has been no showing that the court apprised him of the nature of his right to be present or the consequences of his failure to exercise that right. Upon being informed by defense counsel that defendant was "not coming", the court summa...