People v. Stoute

• Decision Date: 31 May 1988
• Parties: The PEOPLE, etc., Respondent, v. Junior STOUTE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 36

529 N.Y.S.2d 36

140 A.D.2d 728

The PEOPLE, etc., Respondent, v. Junior STOUTE, Appellant.

Supreme Court, Appellate Division,

Second Department.

May 31, 1988.

Philip L. Weinstein, New York City (Joel Atlas, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Miriam R. Best and Nancy A. Streeff, of counsel), for respondent.

Before BRACKEN, J.P., and KUNZEMAN, RUBIN and SPATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (O'Brien, J.), rendered November 14, 1986, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was not present at the Sandoval hearing. He contends that his absence affected a substantial right and requires invalidation of his conviction.

A criminal defendant has a constitutional and statutory right to be present during all material stages of the trial of the indictment (CPL 260.10; People v. Mullen, 44 N.Y.2d 1, 403 N.Y.S.2d 470, 374 N.E.2d 369). However, this right may also be waived ( People v. Parker, 57 N.Y.2d 136, 454 N.Y.S.2d 967, 440 N.E.2d 1313). Here, defense counsel expressly waived the defendant's presence, and proceeded in his absence. Further, during seven days of trial no motion was made to reopen the Sandoval hearing. Under these circumstances we find that the defendant's rights were not prejudiced by his absence during the hearing (see, People v. Colombani, 22 A.D.2d 956, 255 N.Y.S.2d 906, affd. 16 N.Y.2d 1055, 266 N.Y.S.2d 129, 213 N.E.2d 460, rearg. denied 17 N.Y.2d 730, 269 N.Y.S.2d 1025, 216 N.E.2d 844.)

The defendant also argues that the trial court incorrectly refused to instruct the jury on the affirmative defense to the charge of robbery in the first degree (Penal Law § 160.15[4] ). The victim testified that he felt a hard object in his back and was later hit across the nose by a cold steel object. Although he saw no gun and no gun was recovered, there was no evidence in the record that the weapon was either unloaded or inoperable. Under these circumstances the court properly refused to submit to the jury the requested instruction ( People v. Watts, 57 N.Y.2d 299, 456 N.Y.S.2d 677, 442 N.E.2d 1188; People v. Cotarelo, 129 A.D.2d 725, 514 N.Y.S.2d 489, lv. granted 70 N.Y.2d 707, --- N.Y.S.2d ----, 513 N.E.2d 719, affd. 71 N.Y.2d 941, 528 N.Y.S.2d 816, 524 N.E.2d 137 [1988] ).

We have reviewed the defendant...