People v. Santana
| Decision Date | 03 February 1998 |
| Citation | 247 A.D.2d 201,668 N.Y.S.2d 390 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Sacary SANTANA, a/k/a Sucrates Santana, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Beth Beller, for respondent.
Toko Serita, for defendant-appellant.
Before MILONAS, J.P., and ROSENBERGER, ELLERIN and NARDELLI, JJ.
Judgment, Supreme Court, New York County (Robert Straus, J.), rendered July 9, 1993, which convicted defendant, after a jury trial, of criminal possession of a controlled substance in the fifth degree and sentenced him to a prison term of 2 1/2 to 5 years, unanimously affirmed.
At the beginning of voir dire, in the defendant's presence, the court engaged in a colloquy with the defense clearly delineating the defendant's right to be present at a bench conference with a prospective juror regarding any reasons the juror did not wish to sit on the case other than "medical reasons or physical problems." After that colloquy, counsel informed the court that the defendant waived his right to be present at such conferences, and the court advised counsel that he would be given ample opportunity to confer with his client regarding any questions that came up during such bench conferences.
Merely because a waiver is expressed by counsel does not render it unknowing if the record demonstrates that the defendant was made aware of his rights (see, People v. Holliday, 241 A.D.2d 399, 660 N.Y.S.2d 980). Here, we find that the record adequately demonstrates that defendant waived his rights under People v. Antommarchi, 80 N.Y.2d 247, 250, 590 N.Y.S.2d 33, 604 N.E.2d 95. The conviction should therefore be affirmed.
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...waived through counsel (see, People v. Vargas, 88 N.Y.2d 363, 373-374, 645 N.Y.S.2d 759, 668 N.E.2d 879). Thus, in People v. Santana, 247 A.D.2d 201, 668 N.Y.S.2d 390, lv. denied 91 N.Y.2d 977, 672 N.Y.S.2d 857, 695 N.E.2d 726, we found that "[m]erely because a waiver is expressed by counse......
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...clearly aware of his right to be present, since he exercised that right by participating in other such conferences (People v. Santana, 247 A.D.2d 201, 668 N.Y.S.2d 390, lv. denied 91 N.Y.2d 977, 672 N.Y.S.2d 857, 695 N.E.2d 726) and was present when counsel thereafter waived in open court. ......
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...N.Y.S.2d 857 91 N.Y.2d 977, 695 N.E.2d 726 People v. Sacary Santana Court of Appeals of New York April 13, 1998 Bellacosa, J. --- A.D.2d ----, 668 N.Y.S.2d 390 App.Div. 1, New York Denied. ...