People v. Welsh

• Decision Date: 16 March 1964
• Citation: 248 N.Y.S.2d 14,42 Misc.2d 296
• Parties: The PEOPLE of the State of New York, v. Douglas WELSH, Defendant.
• Court: New York Supreme Court

Page 14

248 N.Y.S.2d 14

42 Misc.2d 296

The PEOPLE of the State of New York, v. Douglas WELSH, Defendant.

Supreme Court, Special and Trial Term, New York County, Part XXXVII.

March 16, 1964.

Frank S. Hogan, Dist. Atty. (Robert Popper, Asst. Dist. Atty.) for the people.

John Dunaif, Brooklyn, for defendant.

SIDNEY A. FINE, Justice.

As a result of an episode which occurred on April 14, 1963, the defendant was indicted, in four counts, with crimes of assault in the first and second degree and of criminally possessing a weapon. The trial commenced on February 26, 1964. The People, following the examination and cross-examination of the seven witnesses whom they called, rested on the following evening. On the next day, february 28, after the court had denied defendant's motion to dismiss the several counts in the indictment, the defense called four witnesses. Their testimony completed in the late afternoon, defendant's attorney sought, and was granted, an adjournment over the week end, to March 2, in order to permit his client to produce additional witnesses, later identified as Linda and Debora Hammond. Linda, the defendant stated (according to his counsel) 'was coming in from the Carolinas somewhere'.

When court reconvened on Monday, March 2, counsel for the defendant, informing the court that his client had not as yet put in an appearance, requested and procured, a recess until 2 o'clock. Shortly after that hour, counsel again advised the court that he had not been able to locate his client and did not know where he was. The assistant district attorney who was trying the case then advised the court that he had learned, during the recess, that the defendant had purchased an airplane ticket for Panama on Saturday, February 29th and had left on March 1, by plane, for that country. The court thereupon ordered the defendant's bail forfeited and issued a bench warrant. Further proceedings were put over to the morning of March 4. On that adjourned date, the defendant's attorney advised the court that, although he had not heard from his client, he had been informed by Gloria Bowman, defendant's girl friend, with whom he had been living, that she had last seen him last Sunday and was of the opinion that he had left to join his wife in Panama.

Pending a hearing as to the circumstances surrounding the failure of defendant to appear on March 4 for trial and his alleged departure for Panama, the court adjourned the trial to Monday, March 9.

Upon the hearing on that day, Gloria Bowman testified that the defendant had left her at 3 o'clock of the afternoon on March 1 and that she did not seek or speak to him again; she had heard, she declared, that the defendant had gone to rejoin his wife in the City of Cristobal, Panama. As to the witnesses Hammond, for whose alleged appearance the trial had gone over until March 2, it was shown that they were at home in Brooklyn on February 28. Further testimony, from employees of Eastern Air Lines, established beyond any doubt that the defendant, identified by means of photographs, had on Saturday, February 29, made a reservation for Eastern's flight 973, scheduled to leave Kennedy International Airport on March 1 for Panama via Miami and that the defendant had left on that flight at 9 pm of March 1.

Defendant's counsel was present throughout the hearing and, while he did not question any of the witnesses, he interposed no objections either to the testimony adduced or the exhibits received in evidence. At the conclusion of the hearing, however, he moved for a mistrial because of the defendant's absence. The court denied this motion and then directed that the trial of the criminal proceeding continue on Monday, March 9, despite the absence of the defendant. The trial resulted in a verdict of guilty of the crimes of assault in the second degree and criminally possessing a weapon.

The question thus posed is whether a defendant who has fled the jurisdiction, while his case is on trial, and after the prosecution had completed its case and the defense had called a number of witnesses, may insist upon the declaration of a mistrial on the ground that he has a right, by Constitution and statute to be present throughout the proceedings. Mere statement of the question suggests the answer.

In the absence of an effective waiver by a defendant, charged with a felony, it is indispensable that the accused be present in the courtroom while testimony is being given, while counsel are summing up, while the jury is being charged or when the verdict is rendered or when sentence is pronounced. (see, e. g., People ex rel . Lupo v. Fay, 13 N.Y.2d 253, 246 N.Y.S.2d 399, 196 N.E.2d 56, citing among other cases People v. La Barbera, 274 N.Y. 339, 8 N.E.2d 884). There was in this case no waiver in the traditional or strict sense but it is my opinion that it would be a travesty on justice to say that the defendant did not give up his right to be present at the proceedings. Where the Courts of this State have not passed upon the precise question this Court should act in a proper case to fill the decisional vacuum, particularly when the courts of other jurisdictions have already done so. (cf. Leibert v Clapp, 13 N.Y.2d 313, 317, 247 N.Y.S.2d 102, 105, 196 N.E.2d 540, 542).

It is...