People v. Smith

Citation106 A.D.2d 670,483 N.Y.S.2d 437
PartiesThe PEOPLE, etc., Respondent, v. David Paul SMITH, Appellant.
Decision Date31 December 1984
CourtNew York Supreme Court Appellate Division

Abraham Fishman, Hicksville, for appellant.

Denis Dillon, Dist. Atty., Mineola (Anthony J. Girese, Douglas Noll and George Freed, Asst. Dist. Attys., Mineola, of counsel), for respondent.

Before TITONE, J.P., and NIEHOFF, RUBIN and BOYERS, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the County Court, Nassau County, rendered June 30, 1981, convicting him of criminal sale of a controlled substance in the first degree, criminal possession of a controlled substance in the first degree, and conspiracy in the second degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

Generally, unless a defendant has been informed in some manner of the right to be present at his trial and the consequences of failing to appear, specifically, that the trial will proceed without him, the mere fact that he absents himself from the trial cannot be considered a waiver of his constitutional right to be present at trial (NY Const., art. I, § 6; US Const., 6th Amdt; see People v. Parker, 57 N.Y.2d 136, 454 N.Y.S.2d 967, 440 N.E.2d 1313; People v. Rivera, 103 A.D.2d 225, 479 N.Y.S.2d 57; People v. Scott, 104 A.D.2d 667, 480 N.Y.S.2d 119). Additionally, even if the defendant has been informed of the consequences of nonappearance, to wit, that the trial will proceed in his absence, the court must exercise its discretion and consider all appropriate factors, such as the possibility of locating the defendant within a reasonable period of time, the difficulty of rescheduling the trial, and the possibility of the loss of evidence or witnesses, prior to ordering that the defendant be tried in absentia (People v. Parker, supra, 57 N.Y.2d, p. 142, 454 N.Y.S.2d 967, 440 N.E.2d 1313; People v. Rivera, supra, 103 A.D.2d, p. 227, 479 N.Y.S.2d 57).

However, a voluntary waiver may be implied if the defendant absents himself after his trial commences (see, e.g., Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174; People v. Parker, supra; 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; People v. Rivera, supra; cf. People v. Scott, supra ), or if the defendant voluntarily fails to appear in a multiple defendant proceeding (see United States v. Tortora, 2nd Cir., 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. Parker, supra, 57 N.Y.2d, p. 142, 454 N.Y.S.2d 967, 440 N.E.2d 1313; People v. Rivera, supra, 103 A.D.2d, p. 228, 479 N.Y.S.2d 57).

In the case at bar, defendant, a resident of the State of Florida, absconded prior to the commencement of pretrial proceedings on February 24, 1981. He had been told by his attorney that he was due in court in Nassau County on February 24, 1981. On February 25, 1981, the trial court issued a bench warrant and forfeited defendant's bail.

Defendant had been indicted together with six codefendants. Hearings and the trial proceeded in defendant's absence with five of the other six codefendants present. The hearings and trial extended over a period of over two months, with the People calling more than a dozen witnesses. A number of the codefendants, defense attorneys, and witnesses were Florida residents. The trial had been postponed on two occasions. First, one of the codefendants hired a new attorney. Second, the trial court declared a mistrial due to the death of the prosecutrix's mother. Since this case involved a multiple-defendant proceeding where the other parties were present, defendant waived his right to be present at trial despite the lack of an express warning that the trial would proceed in his absence (see United States v. Tortora, supra; People v. Parker, supra; People v. Rivera, supra, 103 A.D.2d, p. 228, 479 N.Y.S.2d 57; People v. Scott, supra ). Furthermore, under the circumstances of this case, it was unlikely that defendant would have been located within a reasonable period of time, and there would have been enormous difficulties in rescheduling the trial. For all of these reasons, we find that defendant was properly tried in absentia.

Defendant was also properly sentenced in absentia. Since he was properly tried in absentia under the multiple-defendant exception, he may be sentenced in absentia based on that exception (cf. Brewer v. Raines, 9th Cir., 670 F.2d 117; Byrd v. Hopper, 5th Cir., 537 F.2d 1303; People v. Montez, 65 A.D.2d 777, 410 N.Y.S.2d 8; see, also, ...

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7 cases
  • People v. Sanchez
    • United States
    • New York Court of Appeals Court of Appeals
    • July 5, 1985
    ...a defendant who is properly tried in absentia may during his continued absence also be sentenced in absentia (see, People v. Smith, 106 A.D.2d 670, 671-672, 483 N.Y.S.2d 437; Brewer v. Raines, 670 F.2d 117, 119 (9th Cir.); Byrd v. Hopper, 537 F.2d 1303, 1304-1305 (5th Cir.), cert. denied 42......
  • People v. Porter
    • United States
    • New York Supreme Court — Appellate Division
    • September 9, 1985
    ...the trial clearly outweighs that of the voluntarily absent defendant (United States v. Tortora, supra; see also People v. Smith, 106 A.D.2d 670, 483 N.Y.S.2d 437). Furthermore, in light of the fact that four jurors had already been selected in the case at bar, a waiver was established on th......
  • People v. Satchell
    • United States
    • New York Supreme Court — Appellate Division
    • January 27, 1986
    ...v. United States, 396 F.2d 671, 676, quoted in Taylor v. United States, 414 U.S. 17, 19-20, n. 3, 94 S.Ct. 194, see, People v. Smith, 106 A.D.2d 670, 483 N.Y.S.2d 437). The trial court quite reasonably continued the trial when defendant could not be located through a check of at least 18 ho......
  • People v. Zaloga
    • United States
    • New York Supreme Court — Appellate Division
    • November 4, 1985
    ...507, affd. 49 N.Y.2d 978, 428 N.Y.S.2d 949, 406 N.E.2d 804,cert. denied 449 U.S. 839, 101 S.Ct. 117, 66 L.Ed.2d 46; People v. Smith, 106 A.D.2d 670, 483 N.Y.S.2d 437). Therefore, defendant's motion to dismiss the indictment on the ground that his due process rights were violated by the gove......
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