People v. Parker

• Decision Date: 07 October 1982
• Citation: 454 N.Y.S.2d 967,57 N.Y.2d 136,440 N.E.2d 1313
• Parties: , 440 N.E.2d 1313 The PEOPLE of the State of New York, Respondent, v. Vicki PARKER, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 967

454 N.Y.S.2d 967

57 N.Y.2d 136, 440 N.E.2d 1313

The PEOPLE of the State of New York, Respondent, v. Vicki PARKER, Appellant.

Court of Appeals of New York.

Oct. 7, 1982.

Edward J. Nowak, Public Defender, Rochester (Howard A. Bloch, Rochester, of counsel), for appellant

Donald O. Chesworth, Jr., Dist. Atty., Rochester (Sheldon W. Boyce, Jr., and Kenneth R. Fisher, Rochester, of counsel), for respondent.

OPINION OF THE COURT

WACHTLER, Judge.

The question on this appeal is whether a finding that a criminal defendant has received actual notice of the date for trial and has nonetheless voluntarily failed to appear is sufficient, as a matter of law, to permit the court to proceed to try the defendant in absentia. The courts below held this finding sufficient to establish an implicit relinquishment of a defendant's right to be present at trial. We disagree and reverse, 83 A.D.2d 995, 443 N.Y.S.2d 673.

In February, 1977 defendant was indicted for two counts of criminal sale of a controlled substance in the third degree (Penal Law, § 220.39, subd. 1). On Tuesday, July 5, 1977, the trial court notified defense counsel that defendant's case was scheduled for trial on Friday, July 8, 1977. Defense counsel immediately contacted defendant by telephone to notify her of the trial date. She replied that she was seriously ill, that she might not be able to appear for trial, and that she was too ill to meet with counsel prior to the trial date.

Defendant did not appear for trial on July 8. After being informed of defendant's illness by defense counsel, the court adjourned the matter until Monday, July 11. Defendant failed to appear on that day and defense counsel indicated that he had neither heard from nor been successful in locating defendant during the adjournment.

The trial court then conducted a hearing to determine defendant's whereabouts. The prosecutor called Jeanette Harris, who had known defendant for 10 years and who posted bail for her. Mrs. Harris testified, on direct examination, that she spoke with defendant on June 25, 1977, at which time defendant indicated an intention to leave town. Mrs. Harris also stated that defendant never mentioned that she was ill. On cross-examination, Mrs. Harris stated that about one month before the hearing defendant's sister told defendant to leave town but that defendant responded by saying she would not flee. She testified that her son, James Harris, told her defendant was "out in the street".

After Mrs. Harris testified, defense counsel told the court that defendant never told him she was planning to leave the jurisdiction. The court found that defendant's absence was voluntary and that she had voluntarily waived her right to be present at trial. Pursuant to court order and over defense counsel's objection, defendant was tried in absentia. No effort was made to secure the presence of the defendant through the use of a bench warrant.

At trial Officer Ruffin, of the Drug Enforcement Administration (DEA) Task Force of Monroe County, testified to purchasing cocaine and morphine from defendant. Two other DEA officers, who were observing Ruffin's vehicle from a distance of 60 feet at the time of the sale identified defendant as the individual who entered the vehicle when the transaction occurred. At the close of the People's case defense counsel called no witnesses but indicated that he would have called defendant had she not been tried in absentia, and that she would have rendered an exculpatory explanation of the transaction.

The jury returned a verdict finding defendant guilty on both counts of criminal sale of a controlled substance in the third degree. She was sentenced in absentia to an indeterminate term of two years to life in prison on each count, to run concurrently.

The Appellate Division affirmed the judgment of conviction, without opinion. We conclude that the trial court's factual finding of voluntary absence from court on the day scheduled for her appearance is alone insufficient as a matter of law to establish an implicit waiver of defendant's right to be present at trial so as to permit the court to try defendant in absentia.

A defendant's right to be present at a criminal trial is encompassed within the confrontation clauses of the State and Federal Constitutions (N.Y. Const., art. I, § 6; U.S. Const., 6th Amdt.) and the Criminal Procedure Law (CPL 260.20, 340.50). Of course the right to be present may, as a general matter, be waived under both Constitutions (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).

More specifically, we have recently held that a waiver of the right to be present at a criminal trial may be inferred from certain conduct engaged in by the defendant after the trial has commenced. Thus in 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 we held that defendant waived his right to be present when, after attending his trial for the first two days, he refused to leave his cell and attend further proceedings as part of his participation in an inmate boycott of the courts. We noted that prison personnel had repeatedly warned the defendant of the consequences of his refusal to leave his cell. Similarly, in People v. Johnson, 37 N.Y.2d 778, 375 N.Y.S.2d 97, 337 N.E.2d 605, we held that the defendant's behavior in disrupting trial proceedings and his repeated requests to leave the courtroom, along with the court's explanation of the consequence that the trial would proceed without him, were sufficient to waive the defendant's right to be present at the trial (see, also, Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174).

Although the right to be present at a criminal trial may be waived, the right is of a fundamental constitutional nature and therefore the validity of any waiver including one which could be implied, must be tested according to constitutional standards. Thus, in People v. Epps, 37 N.Y.2d, supra, at p. 350, 372 N.Y.S.2d 606, 334 N.E.2d 566 we noted that the key issue was whether this defendant knowingly, voluntarily and intelligently relinquished his known right (Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461).

The People argue that a forfeiture rather...