People v. Colon

Decision Date06 July 1971
Citation322 N.Y.S.2d 907,66 Misc.2d 956
PartiesThe PEOPLE of the State of New York v. Aurora COLON.
CourtNew York Supreme Court
MEMORANDUM

ABRAHAM J. KALINA, Justice.

The defendant was indicted and charged with the crimes of criminally selling a dangerous drug in the third degree, criminal possession of a dangerous drug in the fourth degree and criminal possession of a dangerous drug in the sixth degree. Upon arraignment she entered a 'not guilty plea' and was released on bail.

The indictment appeared on the ready-day calendar on January 11, 1971. On several occasions thereafter the case was adjourned at defendant's request on the claim by defendant's attorney that his client was ill and could not appear. On April 12, 1971, the defendant appeared and the trial commenced and a jury was selected. All of the People's witnesses testified except an expert chemist whose testimony was required to establish that the contraband alleged to have been possessed and sold by the defendant was a narcotic drug. The trial was adjourned to April 13, 1971.

On April 13, 1971, the defendant's attorney informed the court that the defendant had appeared in his office that morning and had had a fainting spell. An ambulance was called from the Long Island College Hospital and the defendant was taken to the hospital for treatment. The attorney for the defendant then made a motion for a mistrial which was denied. The court directed the District Attorney to have Dr. Philip Goldstein, the medical assistant to the District Attorney, communicate with the Long Island College Hospital and report to the court as to the defendant's condition. Dr. Goldstein thereafter informed the court that the defendant was treated in the out-patient department of the hospital that morning and was discharged. The case was adjourned until April 14, 1971.

On April 14, 1971, the attorney for the defendant informed the court that the defendant was ill and would not appear, and again moved for a mistrial. The motion was denied. The court then informed the attorney for the defendant that absent medical proof as to the defendant's physical condition, it would order the trial to proceed. A hearing was then held at which Dr. Goldstein testified. After the hearing, the court again denied the application for a mistrial. A bench warrant was then issued and the court directed the police officers who had testified in the case to go to the defendant's home and execute the bench warrant. The court further directed the District Attorney to subpoena the records of the Long Island College Hospital and to subpoena the physician who examined and treated the defendant at the Long Island College Hospital. The case was then adjourned to April 15, 1971.

On April 15, 1971, a further hearing was held at which the physician who treated the defendant at Long Island College Hospital testified. The record of the Long Island College Hospital were introduced in evidence. The police officer to whom the bench warrant was given testified and stated that he could not execute the warrant and that he was informed by the defendant's daughter and relatives that the defendant had informed them that she would never appear in court and would flee from the jurisdiction of this court. At the conclusion of the hearing, at which the attorney for the defendant was present, the court again denied a motion for mistrial and directed that the trial proceed in the absence of the defendant. The attorney for the defendant informed the court that he would not participate in the trial and would stand mute. The court directed the attorney for the defendant to be present during the trial. The trial then resumed and proceeded to verdict. The defendant was found guilty as charged in the indictment.

The court thereafter ordered and directed the Probation Department to prepare a report for sentence and directed the attorney for the defendant to be present on the day of sentence.

The matter of sentence is now before the court. The defendant has failed to appear for sentence. Her attorney is present.

The questions to be answered by the court age:

(1) Whether the trial could have proceeded in the defendant's absence; and

(2) May the court impose sentence in the defendant's absence.

The answer to the first question presents no problem. It is well settled that where the offense is not a capital one and where the accused is not in custody, that if after the trial has begun in his presence, he deliberately absents himself from the courtroom, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present. (See Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500; People v. La Barbera, 274 N.Y. 339, 8 N.E.2d 884; State ex rel. Shetsky v. Utecht, 228 Minn. 44, 36 N.W.2d 126; Falk v. United States, 15 App.D.C. 446.)

In Diaz, supra, the court quoted the follwoing from Falk, supra, p. 454:

'It does not seem to us to be consonant with the dictates of common sense that an accused person, being at large upon bail, should be at liberty, whenever he pleased, to withdraw himself from the courts of his country and to break up a trial already commenced. The practical result of such a proposition, if allowed to be law, would be to prevent any trial whatever until the accused person himself should be pleased to permit it. * * * This would be a travesty of justice which could not be tolerated; and it is not required or justified by any regard for the right of personal liberty. On the contrary, the inevitable result would be to abridge the right of personal liberty by abridging or restricting the right now granted by the statute to be abroad on bail until the verdict is rendered. * * * But we do not think that any rule of law or constitutional principle leads us to any conclusion that would be so disastrous as well to the administration of justice as to the true interests of civil liberty'. (15 App.D.C. pp. 454--455.)

* * * 'The question is one of broad public policy, whether an accused person, placed upon trial for crime and protected by all the safeguards with which the humanity of our present criminal law sedulously surrounds him, can with impunity defy the processes of that law, paralyze the proceedings of courts and juries and turn them into a solemn farce, and ultimately compel society, for its own safety, to restrict the operation of the principle of personal liberty. Neither in criminal nor in civil cases will the law allow a person to take advantage of his own wrong. And yet this would be precisely what it would do if it permitted an escape from prison, or an absconding from the jurisdiction while at large on bail, during the pendency of a trial before a jury, to operate as a shield from further prosecution for the crime. An escape is itself a criminal offense, although now rarely punished independently of the principal offense for which the party is held. Can it be that an act, which is in itself a criminal offense, is to be allowed in law to operate as a release from criminal prosecution, and therefore ultimately from criminal liability? We can not think that the constitutional guarantee in its practical application will lead us to any conclusion so absurd. The Constitution was not intended to shield the guilty from the consequences of crime, but to protect the innocent.' (15 App.D.C. 460.)

The answer to the second question, as to whether the defendant can be sentenced in absentia, is not as easily answered.

At common law the right of an accused to be present at certain stages of the trial was necessary to him. In the criminal procedure of early English law, these rights were vital to defendants and were carefully guarded by the court, perhaps for the reason that capital punishment and prison terms were imposed more frequently in those days and for offenses which would be regarded today as being trivial. Research by this court discloses that the courts of various states almost unanimously hold that the right to be present subsequent to arraignment and plea and after the commencement of the trial in his presence and prior to the imposition of sentence may be waived by the voluntary absence of the defendant.

Where, however, as in this case, the defendant has been released on bail, it is self-evident that he orders and controls his own movements outside the courtroom. He comes and goes whenever he chooses. He is in fact his own keeper and jailer. Can he, as in this case, willfully absent and conceal himself and then urge that a...

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  • Head v. Com.
    • United States
    • Virginia Court of Appeals
    • September 16, 1986
    ... ... State v. Ellerson, 125 Ariz. 249, 609 P.2d 64, 68 (1980); People v. McInnis, 85 Ill.App.3d 109, 114, 40 Ill.Dec. 498, 501, 406 N.E.2d 199, 202 (1980); Byrd v. Ricketts, 233 Ga. 779, 780, 213 S.E.2d 610, 611 ... Kelly, 213 Kan. 237, 515 P.2d 1030 (1973); People v. White, 18 Cal.App.3d 44, 48, 95 Cal.Rptr. 576, 578 (1971); People v. Colon, 66 ... Misc.2d 956, 960, 322 N.Y.S.2d 907, 911 (1971) ...         Many of the federal cases support the opposite view in holding that a ... ...
  • Smith v. State
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    • Georgia Court of Appeals
    • September 9, 1976
    ...State v. Kelly, 213 Kan. 237, 515 P.2d 1030 (1973); People v. White, 18 Cal.App.3d 44, 95 Cal.Rptr. 576 (1971); People v. Colon, 66 Misc.2d 956, 322 N.Y.S.2d 907 (1971).' Byrd v. Ricketts, 233 Ga. 779, 780, 213 S.E.2d 610, The providential (including illness) prevention of a party from atte......
  • Root v. Kapelman
    • United States
    • New York Supreme Court — Appellate Division
    • April 3, 1979
    ...the principle that a defendant who absconds waives his right to be present at trial and at sentence. (See, also, People v. Colon, 66 Misc.2d 956, 322 N.Y.S.2d 907; People v. Cordero, --- Misc.2d ---, --- N.Y.S.2d ----, decided There is a specific statutory provision in this State that a def......
  • People v. Carson
    • United States
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    • August 10, 1979
    ...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 Soc......
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