Opinion
2015–01381 Ind.No. 8102/13
06-20-2018
The PEOPLE, etc., Respondent, v. Lynell BAYNES, Appellant.
Paul Skip Laisure, New York, N.Y. (Kathleen Whooley of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, and Arieh Schulman of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Kathleen Whooley of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, and Arieh Schulman of counsel), for respondent.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Miriam Cyrulnik, J.), rendered February 17, 2015, convicting her of attempted assault in the first degree, criminal possession of a weapon in the second degree, false personation, and unlawful possession of marijuana, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in trying her in absentia. "A defendant's right to be present at a criminal trial is encompassed within the confrontation clauses of the State and Federal Constitutions" ( People v. Parker, 57 N.Y.2d 136, 139, 454 N.Y.S.2d 967, 440 N.E.2d 1313 ; see People v. Johnson, 154 A.D.3d 777, 62 N.Y.S.3d 455 ; People v. Paige, 134 A.D.3d 1048, 1052, 22 N.Y.S.3d 220 ). However, a defendant "may forfeit that right by deliberately absenting himself [or herself] from the proceedings" ( People v. Williams, 147 A.D.3d 983, 983, 47 N.Y.S.3d 421 ; see People v. Sanchez, 65 N.Y.2d 436, 443–444, 492 N.Y.S.2d 577, 482 N.E.2d 56 ; People v. Fields, 115 A.D.3d 673, 674–675, 981 N.Y.S.2d 538 ). "A valid waiver of the right to be present at trial will be implied if the record reflects that the defendant is aware that trial will proceed even though he or she fails to appear" ( People v. Traylor, 74 A.D.3d 1251, 1252, 904 N.Y.S.2d 473 [internal quotation marks omitted]; see People v. Spotford, 85 N.Y.2d 593, 599, 627 N.Y.S.2d 295, 650 N.E.2d 1296 ; People v. Parker, 57 N.Y.2d at 141, 454 N.Y.S.2d 967, 440 N.E.2d 1313 ; People v. Brooks, 308 A.D.2d 99, 104, 763 N.Y.S.2d 86 ). "[B]efore proceeding in the defendant's absence, the court has an obligation to inquire into the surrounding circumstances to determine if the defendant's absence is deliberate and to recite on the record the reasons for its finding" ( People v. Amato, 172 A.D.2d 545, 545, 567 N.Y.S.2d 873 ; see People v. Redzeposki, 7 N.Y.3d 725, 726, 818 N.Y.S.2d 182, 850 N.E.2d 1157 ; People v. Brooks, 75 N.Y.2d 898, 899, 554 N.Y.S.2d 818, 553 N.E.2d 1328 ; People v. Williams, 147 A.D.3d at 984, 47 N.Y.S.3d 421). Even where a court has determined that a defendant, by not appearing after being apprised of the right and the consequences of nonappearance, has waived the right to be present at trial, "trial in absentia is not thereby automatically authorized" ( People v. Parker, 57 N.Y.2d at 142, 454 N.Y.S.2d 967, 440 N.E.2d 1313 ; see People v. June, 116 A.D.3d 1094, 1095, 983 N.Y.S.2d 348 ). "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" ( People v. Parker, 57 N.Y.2d at 142, 454 N.Y.S.2d 967, 440 N.E.2d 1313 ; see People v. Johnson, 154 A.D.3d 777, 62 N.Y.S.3d 455 ; People v. Major, 68 A.D.3d 1244, 1245, 890 N.Y.S.2d 186 ).
Here, the Supreme Court informed the defendant of her right to be present at trial, and that, if she failed to appear, and such failure were deemed deliberate, she could be tried, convicted, and sentenced in absentia. The court therefore properly concluded that, by nevertheless choosing to absent herself from the proceedings, the defendant had waived her right to be present at trial (see People v. Spotford, 85 N.Y.2d at 599, 627 N.Y.S.2d 295, 650 N.E.2d 1296 ; People v. Parker, 57 N.Y.2d at 141, 454 N.Y.S.2d 967, 440 N.E.2d 1313 ; People v. Traylor, 74 A.D.3d at 1252, 904 N.Y.S.2d 473 ; People v. Brooks, 308 A.D.2d at 104, 763 N.Y.S.2d 86 ). Moreover, the record shows that the court satisfied its obligation to consider "all appropriate factors" before proceeding to trial in the defendant's absence ( People v. Parker, 57 N.Y.2d at 142, 454 N.Y.S.2d 967, 440 N.E.2d 1313 ). At the Parker hearing, the People established that diligent efforts had been made to locate the defendant, without success. Accordingly, the court providently exercised its discretion in proceeding with jury selection and trying the defendant in absentia (see People v. James, 19 A.D.3d 615, 796 N.Y.S.2d 543 ; People v. Hernandez, 251 A.D.2d 597, 673 N.Y.S.2d 610 ; People v. Nance, 175 A.D.2d 185, 572 N.Y.S.2d 335 ).
As the defendant correctly concedes, her challenge to the admission into evidence of a mug shot and wanted poster is unpreserved for appellate review (see CPL 470.05[1] ), and we decline to reach it in the exercise of our interest of justice jurisdiction. Moreover, viewing counsel's performance in its totality, any failure to object to such admission did not deprive the defendant of meaningful representation (see People v. Blake, 24 N.Y.3d 78, 81, 996 N.Y.S.2d 585, 21 N.E.3d 214 ; People v. Sandoval, 141 A.D.3d 621, 621–622, 34 N.Y.S.3d 898 ; People v. Summerville, 138 A.D.3d 897, 29 N.Y.S.3d 487 ; People v. Diallo, 132 A.D.3d 1010, 1010–1011, 18 N.Y.S.3d 440 ).
BALKIN, J.P., CHAMBERS, DUFFY and LASALLE, JJ., concur.