People v. Smith

• Decision Date: 04 June 1985
• Citation: 489 N.Y.S.2d 908,111 A.D.2d 608
• Parties: The PEOPLE of the State of New York, Respondent, v. Brunce SMITH, a/k/a Bruce Smith, a/k/a Nat Smith, a/k/a Nathaniel Dickerson, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 908

489 N.Y.S.2d 908

111 A.D.2d 608

The PEOPLE of the State of New York, Respondent, v. Brunce SMITH, a/k/a Bruce Smith, a/k/a Nat Smith, a/k/a Nathaniel Dickerson, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

June 4, 1985.

T.J. Miller, New York City, for respondent.

A.J. Neisser, New York City, for defendant-appellant.

Before SANDLER, J.P., and ROSS, BLOOM, MILONAS and ELLERIN, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, Bronx County, rendered June 26, 1981, which convicted defendant of criminal possession of a weapon in the second degree, two counts of assault in the second degree and reckless endangerment in the first degree and sentenced him to concurrent terms of imprisonment of seven and a-half to fifteen years and three and a-half to seven years, is reversed on the law and the matter remanded for a new trial.

The facts are fairly and fully stated in the dissenting opinion. In attempting to distinguish the instant situation from that existing in analogous cases (People v. Trendell, 61 N.Y.2d 728, 472 N.Y.S.2d 616, 460 N.E.2d 1101; People v. Parker, 57 N.Y.2d 136, 454 N.Y.S.2d 136, 440 N.E.2d 1313; People v. Walker, 104 A.D.2d 759 480 N.Y.S.2d 484; People v. Rodriguez, 102 A.D.2d 769, 476 N.Y.S.2d 908), the dissent has concluded that it was not the purpose of these cases to lay down a per se rule requiring that a defendant who has absented himself without just cause be specifically warned that the trial would proceed without him. According to the dissent, it is sufficient if on the basis of the facts, it can be inferred that the defendant was possessed of such knowledge. However, the holding in People v. Parker, supra, is clear. Although the Court of Appeals acknowledged therein that the right to be present at one's trial may be waived, it went on to declare that this right is of such fundamental constitutional nature that the validity of any waiver must be measured according to constitutional standards. As the court asserted (57 N.Y.2d at 141, 454 N.Y.S.2d 136, 440 N.E.2d 1313):

In order to effect a voluntary, knowing and intelligent waiver, the defendant must, at a minimum, be informed in some manner of the nature of the right to be present at trial and the consequences of failing to appear for trial (see Schneckloth v. Bustamonte, 412 US 218, 243-244 Brady v. United States, 397 US 742, 748 ). This, of course, in turn requires that defendant simply be aware that trial will proceed even though he or she fails to appear. As noted above, the defendants in Epps and Johnson were both expressly told that trial would proceed in their absence.

Even where the court has determined that a defendant has waived his right to be present by failing to show up after being advised of the right and the consequences of nonappearance, trial in absentia is still not automatically authorized. "Rather, the trial court must exercise its sound discretion upon consideration of all appropriate factors, including the possibility that defendant could be located within a reasonable period of time, the difficulty of rescheduling trial and the chance that evidence will be lost or witnesses will disappear... . In most cases the simple expedient of adjournment pending execution of a bench warrant could provide an alternative to trial in absentia unless, of course, the prosecution can demonstrate that such a course of action would be totally futile." (People v. Parker, supra, at 142, 454 N.Y.S.2d 136, 440 N.E.2d 1313; see also People v. Walker, supra ) Moreover, the fact pattern involved here is not comparable to that in any of the limited instances in which courts have found a waiver of the right to be present at trial. (See Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174; United States v. Tortora, 464 F.2d 1202, cert. den. sub nom. Santoro v. United States, 409 U.S. 1063, 93 S.Ct. 554, 34 L.Ed.2d 516; 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; People v. Johnson, 37 N.Y.2d 778, 375 N.Y.S.2d 97, 337 N.E.2d 605; People v. Byrnes, 33 N.Y.2d 343, 352 N.Y.S.2d 913, 308 N.E.2d 435.)

While it is true that the defendant apparently did not decide to absent himself until after he had heard the strength of the People's proof, as presented by the prosecution at the pretrial hearing, the fact remains that "the record before us is devoid of any evidence indicating that defendant was ever apprised or otherwise aware that trial would proceed in absence." (People v. Parker, supra, 57 N.Y.2d at 141, 454 N.Y.S.2d 136, 440 N.E.2d 1313; brackets added) In that regard, a defendant's prior contacts with the law is hardly an adequate reason to assume a knowledge and understanding of the consequences of nonappearance. To find otherwise would have the effect of establishing one standard for those defendants with a criminal record and another for those without. Yet, if governmental authorities are never relieved from the necessity of having to provide Miranda warnings no matter how many times an individual has previously been detained by the police or heard those warnings before, it is difficult to perceive how a waiver of such significant constitutional dimension as the right to be present at one's trial can be inferred from a person's having had prior encounters with the law.

Moreover, the dissent seems to be equating a suppression hearing, which is denoted a "mini-trial", with the trial itself, thereby creating a new rule of law that if the defendant absconds during a pretrial hearing, particularly if conducted in the same courtroom in which the trial is scheduled, that is tantamount to his not appearing during trial. No legal authority supports such a proposition. In People v. Parker, supra, the Court of Appeals does point out that there are instances in which a waiver may be implied as a matter of law from the circumstances (at 141). However, such situations are generally restricted to occasions in which trial has already commenced (See Taylor v. United States, supra ) or the defendant behaves in an unruly manner during the course of the trial (See People v. Johnson, supra ). The trial in the present matter had not yet begun, and, notwithstanding defendant's previous arrests, there is no indication in the record that he had ever before experienced a trial or at any time been advised of the legal consequences of failing to show up for trial. Thus, the defendant is entitled to have his conviction vacated and the case remanded for a new trial.

All concur except ROSS and BLOOM, JJ., who dissent in a memorandum by BLOOM, J., as follows:

The basic question submitted for our consideration is whether, in the circumstances of this case, it was proper to try defendant in absentia. We conclude that it was. Accordingly, we would affirm.

Defendant stands convicted of the crimes of criminal possession of a weapon in the second degree, two counts of assault in the second degree and reckless endangerment in the first degree. As a predicate felon, he was sentenced to concurrent terms of imprisonment of 7 years, 6 months to 15 years; and to three terms of 3 years, 6 months to 7 years.

The circumstances leading to this appeal are as follows:

Robert Glenn and defendant were both students at Manhattan Community College. They engaged in a game of cards and defendant lost the sum of $2.00 to Glenn. Whether defendant refused to pay Glenn or was unable to do so is not indicated. In any event, Glenn was not paid. Some weeks later, on May 28, 1979, the two met again at a playground where Glenn was engaged in a game of basketball. An argument ensued over the $2 debt from defendant to Glenn. As Glenn turned to walk away, defendant hit him over the side of the head with the butt of a gun. Glenn then started to run. Smith fired a number of shots into the playground, wounding Glenn and a bystander, Thaddeus Kempson, who was leaning against the fence watching the basketball game.

Defendant fled the scene, pursued by a number of those who had been watching the game. When the police, who had been summoned, arrived, they were informed that the person who had fired the shots had entered a building located at 386 E. 153rd Street. The police entered the premises and conducted a floor by floor search. Defendant was found on the roof of the building. He was arrested, frisked, and informed of his Miranda rights. No weapon was recovered. As the officers, Detectives Morse and Netti left the building, two bystanders, Bernier and Douthept, told them that defendant had fired the shots.

The detectives and the defendant proceeded to the 40th Precinct. Detective Morse testified that while enroute to the precinct, defendant denied that he had shot anyone. He told Morse that a "white dude dressed in green from Brooklyn" was the one involved. At the precinct, the detectives learned that the two victims were in the emergency room at Lincoln Hospital and were in a condition to make an identification. Defendant was taken to the hospital where both Glenn and Kempson identified him as the shooter.

Defendant was thereafter indicted and arraigned. The case came up in the assignment part on March 11, 1981. When the case was called for assignment to a trial part, the prosecutor answered ready with the understanding that one of the complainants would not be available until the following day. Defense counsel responded by requesting a Wade-Huntley hearing (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179). Initially, the request was denied on the ground that no formal motion had been made therefor. After discussion with counsel, the Court reconsidered its determination and permitted the hearing. For that purpose, it referred the matter to a trial part noting:

"that if we run out of witnesses, they can go today with the selection of the jury, which I assure you, will in...