People v. Epps

• Decision Date: 15 November 1972
• Citation: 71 Misc.2d 1075,338 N.Y.S.2d 297
• Parties: PEOPLE of the State of New York v. Donald H. EPPS.
• Court: New York Supreme Court

Page 297

338 N.Y.S.2d 297

71 Misc.2d 1075

PEOPLE of the State of New York v.Donald H. EPPS.

Supreme Court, Criminal Term, Kings County, Part VIII.

Nov. 15, 1972.

[71 Misc.2d 1076] William M. Kunstler, Jesse Zaslav, New York City, for defendant.

Eugene Gold, Dist. Atty., Kings County, Brooklyn (Eugene Schwartzwald, Asst. Dist. Atty., Helman R. Brook, Brooklyn, and Barry Gene Rhodes, Brooklyn, of counsel), for the State.

MEMORANDUM

LOUIS B. HELLER, Justice.

The defendant moves to vacate the verdict of the jury rendered on July 27, 1972 convicting him of assault in the first degree, sodomy in the first degree and two counts of assault in the third degree upon the ground that continuing the trial in his absence violated his constitutional and statutory right to be present.

The trial commenced on July 20, 1972.The defendant was present on July 20, 21 and the afternoon of July 24.His attorney was present throughout the trial.Selection of the jury was completed on the morning of July 21.

At the afternoon session on July 21 one of the complainants gave her direct testimony.What she said is relevant to the defendant's motives for his refusal to attend the trial and to the merits of his claim to invalidate the conviction.

She testified that on March 17, 1972she, the other female complainant and the defendant were in an apartment in Brooklyn.He induced a state of fear in their minds by demonstrating that his Doberman pinscher dog would obey his command and by asserting that 'if any one of (them) moved, that dog was going to bite (them).'Thereafter he struck both women, who were in the nude, numerous blows across their backs with a belt and engaged in brutal, deviate, animal-like sex acts with complainants.The defendant having concluded his day's activities stated that he was tired and went to sleep.The witness escaped from the apartment and notified the police.The defendant was still asleep when they arrived.

The defendant did not appear in court on the morning of July 24.The court instructed the defendant's attorney to inform the defendant that it directed him to be present at 2:00 P.M.The defendant appeared at that time.His attorney stated, 'I have given the defendant my advice and he decided to come back'.The trial was resumed and the court day concluded with the female witness still under cross-examination.The court warned the defendant to be present the following day and stated that if he was not there the case would be tried in his absence.

On July 25the defendant failed to appear.Captain Fasano of the Department of Correction testified that the defendant was one of the prisoners at the Brooklyn House of Detention who refused to come to court.The captain was instructed by the court to telephone the jail and have the defendant informed that he was directed to come to court, that if he did not appear the court intended to proceed with the trial in his absence, and to get his answer.If the defendant stated he would be present at two o'clock, the captain was authorized to state that the court would wait for him.The captain was recalled and testified that he had made the telephone call, the court's message had been given to the defendant and the defendant refused to come to court.

After that testimony, the following appears of record:

'THE COURT: You were down and you warned the defendant yesterday, did you not, that if he is not--if he doesn't appear here, I will try it in his absence, is that correct?

MR. ZASLAV: Yes.* * *

THE COURT: * * *

The defendant was warned by you when he came here at two o'clock.He sat through until the case was finished, around four o'clock.I warned him again.I asked him if he'd come here, he answered, yes.And now he refuses to come.* * *

MR. ZASLAV: May I just correct--when you talk about my position, my position I take will not be on a voluntary basis.It would come about as a result of the facts here, that I do not have a defendant present at defense table to correct anything that's being said.

THE COURT: That's the defendant's own making.If he chooses to do that, that's his responsibility.'

The trial was continued in the absence of the defendant; and the other complainant was examined and cross-examined.Two police officers also testified.

On July 26the defendant again did not appear in court.Captain Fasano was recalled.He testified that the court's message directing the defendant to appear and warning him that the trial would proceed in his absence was conveyed to the defendant; and that he refused to come to court.The court directed the captain to again call the prison and inform the defendant that he still had a further opportunity to appear at 2:00 P.M.The trial was continued.

After the luncheon recess the captain testified that he had communicated with the defendant and that the defendant refused to appear and had stated, 'He is not interested'.

The medical testimony was received, after which the People rested.On motion of the defendant's attorney the court dismissed all counts in the indictment except counts numbered 2, 3, 4 and 12.

The defendant's attorney rested stating that since the defendant was not present, he did not know whether the defendant wished to testify.The following colloquy took place:

'THE COURT: I will give you every opportunity to go over to the jail and I will wait here for you until you have a discussion with him, and ask him whether, having heard my decision on these counts, whether he wants to come and testify.

MR. ZASLAV: If your Honor please based on the advice that I had given the defendant, I at this time rest.

THE COURT: In other words, your advice would be that he shouldn't testify?

MR. ZASLAV: That's correct.

THE COURT: All right.You rest then?

MR. ZASLAV: Right.'

The jury returned a verdict of guilty, in the absence of the defendant, on July 27.

The question presented is whether a defendant in custody, in a non-capital case, can stop the progress of a trial after it has been commenced in his presence with counsel and some testimony taken, by voluntarily absenting himself thus defeating the ends of justice or may the court proceed and finish the trial in his absence.

The defendant contends that the court violated his constitutional and statutory rights when it continued the trial in his absence.

The right of a defendant to be personally present at his trial for a felony is embodied in the Sixth and Fourteenth Amendments of the Federal Constitution,New York Constitution Article I Section 6andSection 260.20 of the Criminal Procedure Law.

Section 260.20 of the C.P.L. provides:

'A defendant must be personally present during the trial of an indictment; provided, however, that a defendant who conducts himself in so disorderly and disruptive a manner that his trial cannot be carried on with him in the courtroom may be removed from the courtroom if, after he has been warned by the court that he will be removed if he continues such conduct, he continues to engage in such conduct.'

The last clause of proviso of the section was added to implement Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353, which held that a defendant can lose his right to be present at a trial if he conducts himself 'in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom'(p. 343, 90 S.Ct. p. 1061).This right to be present in the courtroom at each stage of the trial has been denominated a 'basic right' guaranteed by the Sixth Amendment and the due process clause of the Fourteenth Amendment(Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011;California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489;Illinois v. Allen, supra, 397 U.S. p. 338, 90 S.Ct. 1057;People ex rel. Bartlam v. Murphy, 9 N.Y.2d 550, 215 N.Y.S.2d 753, 175 N.E.2d 336;People ex rel. Lupo v. Fay, 13 N.Y.2d 253, 246 N.Y.S.2d 399, 196 N.E.2d 56, cert. den.376 U.S. 958, 84 S.Ct. 979, 11 L.Ed.2d 976), and is binding upon the States (Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923;Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213;Illinois v. Allen, supra).

In the Federal CourtsRule 43, F.R.Crim.P.(U.S.Code, tit. 18, Appendix) provides in part:

'In prosecutions for offenses not punishable by death, the defendant's voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict. * * *'

The rule is only a restatement of the defendant's constitutional rights and its protections can be waived by the defendant's conduct (United States v. Tortora, 2 Cir., 464 F.2d 1202, 1210).The New York Criminal Procedure Law contains no similar provision.This court agrees with the holding in Tortora, although in that casethe defendant failed to appear on the date fixed for trial and the court proceeded in his absence.Here, of course, the trial was well under way when the defendant absented himself.

The right to be present at the trial may be waived by the defendant in a non-capital case (People v. Thorn, 156 N.Y. 286, 50 N.E. 947;People v. LaBarbera, 274 N.Y. 339, 8 N.E.2d 884;People v. Winship, 309 N.Y. 311, 130 N.E.2d 634;People v. O'Keefe, 281 App.Div. 409, 120 N.Y.S.2d 349, aff'd306 N.Y. 619, 116 N.E.2d 80;People ex rel. Lupo v. Fay, supra;People ex rel. McBride v. Fay, 19 A.D.2d 712, 242 N.Y.S.2d 448, aff'd14 N.Y.2d 843, 251 N.Y.S.2d 690, 200 N.E.2d 580).

The statement in Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262andLewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011, that a trial could not continue in the defendant's absence was expressly rejected in Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500.The Sixth Amendment right to be present is not absolute.It may be waived by acts or statements of the defendant(Diaz v. United States, supra, p. 442, 32 S.Ct. 250;United States v. Dalli, 2...