People v. Connor
| Decision Date | 01 February 1988 |
| Citation | 137 A.D.2d 546,524 N.Y.S.2d 287 |
| Parties | The PEOPLE, etc., Respondent, v. Joseph CONNOR, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Martin Geoffrey Goldberg, Franklin Square, for appellant.
John J. Santucci, Dist. Atty., Kew Gardens (Felix M. Hester, of counsel), for respondent.
Before MANGANO, J.P., and BRACKEN, KUNZEMAN and EIBER, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Bianchi, J.) rendered February 19, 1985, convicting him of attempted robbery in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, on the law, and a new trial is ordered; no questions of fact have been raised or considered.
On January 3, 1985, as the trial of the defendant was about to begin, the attorney assigned to represent him brought to the attention of the court that the defendant was dissatisfied with her services and that he wanted another attorney. The defendant was permitted to address the court, and asserted that he was "personally not satisfied with performance". The court ruled that the defendant would nevertheless have to proceed to trial, and that he would be represented by the counsel assigned him. The court and the defendant then engaged in the following exchange:
Following a Sandoval hearing, the defendant again requested that a new attorney be assigned for him. The court again denied this request. After a recess, and before the jury had entered the courtroom, the defendant addressed the court as follows:
The court then delivered its preliminary instructions and the prosecutor delivered his opening remarks. As the defendant's assigned counsel was about to make an opening statement, the defendant stated, within the presence of the jury, the following:
At some point during the foregoing exchange, the defendant was apparently removed from the courtroom.
After a side-bar conference, the court continued to address the jury as follows:
The court then admonished the jury that the only issue for them to resolve was whether the defendant was guilty of the charge contained in the indictment. However, the court repeated to the jury that the defendant "has no funds to retain his own counsel", and again commented on the fact that the defendant had been incarcerated pending trial.
The defense counsel then requested a mistrial based on the fact that the court had indicated to the jury that the defendant was being represented by assigned counsel, and that he had been incarcerated prior to trial. This motion was denied.
The trial then proceeded in the absence of the defendant.
On January 8, 1985, as trial was resuming, the defendant's counsel indicated for the record that the defendant had refused to promise that he would "behave himself". The court had offered to readmit the defendant upon the condition that he would make such a promise. The court stated that "has every opportunity to come out if he wants to provided he behaves". The testimony continued on January 8, in the absence of the defendant.
On January 9, the attorneys delivered their summations. The record indicates that the defendant was present at this time. The defendant apparently remained present for the remainder of that day, through the jury charge, and until the verdict was announced.
The defendant did not receive a fair trial, and the judgment of conviction must...
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...in disruptive behavior during a trial may be held to have, in effect, waived his [or her] right to be present" (People v. Connor, 137 A.D.2d 546, 549, 524 N.Y.S.2d 287 ; see Illinois v. Allen, 397 U.S. 337, 342, 90 S.Ct. 1057, 25 L.Ed.2d 353 ; People v. Byrnes, 33 N.Y.2d 343, 349, 352 N.Y.S......
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