Root v. Kapelman

Decision Date03 April 1979
PartiesApplication of Oren ROOT, Jr., on behalf of Efrain Tantao, and the Application of Leon B. Polsky, Petitioners, for an order pursuant to Article 78 of the Civil Practice Law and Rules v. William KAPELMAN, as Assistant Administrative Judge of the Supreme Court, Bronx County, Ivan Warner, a Justice of the Supreme Court, Bronx County, and Mario Merola, District Attorney, Bronx County, Respondents.
CourtNew York Supreme Court — Appellate Division

Leon B. Polsky and Oren Root, Jr. (Richard G. Greco, New York City, with them on the brief), petitioners pro se.

Gerry E. Feinberg, New York City, of counsel (Robert Abrams, Atty. Gen.), for respondent William Kapelman.

Alan D. Marrus, New York City, of counsel (Steven R. Kartagener, Brooklyn, with him on the brief; Mario Merola, Dist. Atty., pro se), for respondent Mario Merola.


SULLIVAN, Justice.

In this Article 78 proceeding petitioners seek, Inter alia, to prohibit the sentencing In absentia of Efrain Tantao, a defendant in a pending criminal proceeding, who apparently absconded almost five years ago, and alternatively, to prohibit the sentencing court from ordering any attorney from the Legal Aid Society to represent Tantao at such sentencing proceeding.

On February 27, 1974, Tantao, represented by an attorney of the Legal Aid Society, entered a plea of guilty in Supreme Court, Bronx County, to criminal sale of a controlled substance in the third degree, a class A-III felony, in full satisfaction of an indictment charging criminal possession of a controlled substance in the first degree and related offenses, as well as two other outstanding indictments.

The plea bargain placed on the record provided that Tantao would be admitted to bail pending sentence in anticipation of his cooperation with the prosecution in its investigations. If he supplied information which was helpful, the District Attorney would recommend a sentence of lifetime probation. If he failed to cooperate, but did not flee, the sentence was to be one year to life. Should the sentencing court, after a review of the probation report, find itself unable to keep its commitment as to either lifetime probation or the alternative sentence of one year to life, Tantao was to be allowed to withdraw his plea. In the event, however, that Tantao were to abscond the sentence could be as much as eight and one-third years to life. The case was adjourned until April 15, 1974 and Tantao was released on bail pending sentence. When he failed to appear on April 15th, a bench warrant was issued.

In late 1978 or early January of 1979, it was ascertained that there were approximately 170 cases in the Supreme Court, Bronx County, involving defendants who had been convicted but never sentenced due to their unavailability. These cases had apparently been removed from their respective calendars as bench warrants were issued. The Administrative Judge in Bronx County ordered restoration of these cases to the calendar for sentencing.

On the date set for his sentence, January 12, 1979, Tantao, not surprisingly, failed to appear. An attorney for the Legal Aid Society was present, as directed, and at his request the minutes of the plea proceeding were ordered unsealed and a transcript made available. The sentence was then adjourned and this proceeding, in the nature of prohibition, followed. It was brought by a Legal Aid Society attorney on behalf of Tantao, and by Leon Polsky, the attorney-in-charge of the Criminal Defense Division of the Legal Aid Society, individually, as successor to Tantao's original attorney in the criminal proceeding, against the Administrative Judge, the Judge before whom Tantao is to be sentenced, and the District Attorney of Bronx County.

In addition to challenging the court's power to sentence Tantao In absentia, petitioners claim that it has lost jurisdiction to impose sentence because of the unreasonable delay of approximately five years since Tantao's default in appearing and the issuance of the bench warrant. Petitioners argue that if Tantao waived his right to be present, he did so five years ago and that the sentencing court cannot now justify the long delay of almost five years in pronouncing sentence. They also stress that the attempts to locate Tantao were minimal, consisting of two futile efforts by a warrant squad officer to locate him at his last known address.

Petitioner Polsky challenges the court's power to order any of its attorneys to represent a client in his absence, particularly a client whom none of the Society's lawyers has ever met. In this connection, it is pointed out that the Legal Aid attorney who represented Tantao is no longer with the Society (he is currently an assistant district attorney in Bronx County), and that his sole contact with Tantao was a two hour interview prior to the entry of Tantao's plea of guilty.

Whatever their differences, all parties to this controversy are in agreement that this Court should establish guidelines for the disposition of cases of this nature.

An Article 78 proceeding in the nature of prohibition is an extraordinary remedy, to which resort in a criminal matter should be had only when absolutely necessary. (Matter of Steingut v. Gold, 42 N.Y.2d 311, 315, 397 N.Y.S.2d 765, 768, 366 N.E.2d 854, 856; La Rocca v. Lane, 37 N.Y.2d 575, 578-580, 376 N.Y.S.2d 93, 96, 97, 338 N.E.2d 606, 609; Matter of State of New York v. King, 36 N.Y.2d 59, 62, 364 N.Y.S.2d 879, 881, 324 N.E.2d 351, 353; Matter of Nigrone v. Murtagh, 36 N.Y.2d 421, 369 N.Y.S.2d 75, 330 N.E.2d 45.)

"(It) lies only where there is a clear legal right, and . . . only when a court . . . acts or threatens to act without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction" (citations omitted). The writ does not lie as a means of seeking a collateral review of an error of law, no matter how egregious that error might be, in a pending criminal proceeding, but only where the very jurisdiction and power of the court are in issue. (Matter of State of New York v. King, Supra, 36 N.Y.2d at p. 62, 364 N.Y.S.2d at p. 881, 324 N.E.2d at p. 353, and cases cited therein). (Matter of Steingut v. Gold, Supra, 42 N.Y.2d at p. 315, 397 N.Y.S.2d at p. 768, 366 N.E.2d at p. 856.)

Even an error of law of constitutional dimension is not ordinarily reviewable by an Article 78 proceeding. (La Rocca v. Lane, Supra, 37 N.Y.2d at p. 580, 376 N.Y.S.2d at p. 98, 338 N.E.2d at p. 610; see, e. g., Matter of Scranton v. Supreme Court of State of N.Y., 36 N.Y.2d 704, 366 N.Y.S.2d 417, 325 N.E.2d 876 (Article 78 proceeding inappropriate to review claim of deprivation of speedy trial).) It has been held, however, that an Article 78 proceeding is the traditional remedy for raising double jeopardy arguments, because the trial court may lack the jurisdiction to conduct a second trial. (Matter of Scranton v. Supreme Court of State of N.Y., supra.)

These limitations on the use of Article 78 apply even when the claimed error of law would not be immediately, or perhaps ever, reviewable on appeal. (Matter of State of New York v. King, Supra, 36 N.Y.2d at p. 62-63, 364 N.Y.S.2d at p. 881-882, 324 N.E.2d at p. 353-354.) The belief is that if the strictures on the availability of the writ of prohibition were relaxed, the doors would be open to "innumerable proceedings in all sorts of criminal matters to review allegedly prejudicial errors of law for which there would be no eventual appellate review or only appellate review after final judgments, and then only of conviction . . ." and that "(s)uch a system is neither civilized nor even rational." (Matter of State of New York v. King, Supra at pp. 63-64, 364 N.Y.S.2d at p. 883, 324 N.E.2d at p. 354.)

In our opinion, petitioners fail to make the requisite preliminary showing that they have a clear legal right to a prohibition of Tantao's sentence In absentia. It seems clear to us that the law of this State sanctions the right of the court to sentence a defendant who has absconded, whether he does so during trial or after a plea of guilty.

It is now beyond dispute that the right of a defendant to be present at trial "is clearly waivable under both the Federal and State Constitutions" (People v. Epps, 37 N.Y.2d 343, 349, 372 N.Y.S.2d 606, 611, 334 N.E.2d 566, 570), either by voluntary abstention (Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 56 L.Ed. 500), or by consent or misconduct (Illinois v. Allen, 397 U.S. 337, 342-343, 90 S.Ct. 1057, 25 L.Ed.2d 353; see, Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 79 L.Ed. 674). Although the early cases adhered to the common law view that the right was absolute and non-waivable (Stephens v. People, 19 N.Y. 549; Maurer v. People, 43 N.Y. 1), New York has for some time recognized that a defendant in a criminal trial may waive his right to be present. (See, People v. Epps, Supra ; People ex rel. Lupo v. Fay, 13 N.Y.2d 253, 246 N.Y.S.2d 399, 196 N.E.2d 56, Cert. denied, 376 U.S. 958, 84 S.Ct. 979, 11 L.Ed.2d 976; People ex rel. McBride v. Fay, 19 A.D.2d 712, 242 N.Y.S.2d 448, aff'd 14 N.Y.2d 843, 251 N.Y.S.2d 690, 200 N.E.2d 580, Cert. denied, 380 U.S. 982, 85 S.Ct. 1348, 14 L.Ed.2d 275; People v. La Barbera, 274 N.Y. 339, 8 N.E.2d 884.) In People v. Brock, 48 A.D.2d 790, 369 N.Y.S.2d 154, this Court had occasion to reaffirm the principle that a defendant who absconds waives his right to be present at trial and at sentence. (See, also, People v. Colon, 66 Misc.2d 956, 322 N.Y.S.2d 907; People v. Cordero, --- Misc.2d ---, --- N.Y.S.2d ----, decided 12/11/78.)

There is a specific statutory provision in this State that a defendant on a conviction for a felony "must be personally present at the time sentence is pronounced." (CPL § 380.40(1).) The Court of Appeals,...

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