Opinion
11-29-2021
People of the State of New York, v. Louis N. LaValley, Defendant
Hon. Jason M. Carusone, Warren County District Attorney, Avi Goldstein, Esq., Assistant District Attorney Stanclift Law PLLC, Tucker Stanclift, Esq., of counsel, for the defendant
Hon. Jason M. Carusone, Warren County District Attorney, Avi Goldstein, Esq., Assistant District Attorney
Stanclift Law PLLC, Tucker Stanclift, Esq., of counsel, for the defendant
Gary C. Hobbs, J.
The issue before this Court is whether the defendant can voluntarily waive his or her right to personally appear for a preliminary hearing and, instead, request and consent to appear electronically via an electronic or videoconferencing format.
Findings of Fact
On November 24, 2021, the defendant was arrested on felonies of Criminal Contempt in the First Degree [Penal Law § 215.51(c)] and Aggravated Family Offense [Penal Law § 240.75(1)]. On November 24, 2021, the defendant was arraigned in this Court with counsel from the Warren County Public Defender's Office. At his arraignment, the defendant reserved his right to request a preliminary hearing and waived the CPL § 180.80 time to conduct the hearing on the record. As the defendant was charged with felonies and had three prior felony convictions, the defendant was remanded to the Warren County Jail [CPL 530.20(2)]. The Court was notified of a conflict with the Public Defender's Office representation of the defendant, and appointed attorney Tucker Stanclift to represent the defendant.
On November 24, 2021, at 1:53 p.m., this Court received an email from defense counsel requesting a preliminary hearing. Defense counsel further represented, "I will also ask County Court for bail and, if granted before 180.80 expires, I will withdraw my request." The preliminary hearing was scheduled for November 30, 2021 at 1:30 p.m., per the defendant's request. The defendant had a bail hearing before Hon. Robert Smith, Warren County Court Judge, on at 9:30 a.m., and bail was set in the amounts of $25,000 cash or $50,000 insurance bond or $50,000 partially secured surety bond with a 10% premium.
On, at approximately 4:00 p.m., this Court received a memorandum from Correction Sergeant Thomas Haskell, Warren County Jail, indicating that the defendant is housed in a unit where there has been a positive COVID-19 case. The defendant has not tested positive for COVID-19 but may have been recently exposed to the virus. The defendant and other inmates on this unit are under administrative lockdown to quarantine. The jail indicated that, for health reasons, the defendant could not be transported to court on November 30, 2021 and requested an adjournment of the defendant's appearance until December 20, 2021.
The attorneys were immediately provided with a copy of this Memorandum. Despite his prior representation of a withdrawal of the request for a preliminary hearing upon the County Court setting bail, defense counsel requested that the hearing proceed. By email dated, at 7:27 p.m., defense counsel requested that the defendant be produced and allowed to appear via Microsoft Teams format.
Conclusions of Law
The United States Constitution, the New York State Constitution and sections 260.20 and 340.50 of the New York Criminal Procedure Law give a defendant the right to be present at all essential proceedings of a criminal case, including all hearings. However, the purpose of statutes compelling the defendant's presence at trial is for the benefit of the defendant and not for the People. People v. Epps, 37 N.Y.2d 343, 350, 372 N.Y.S.2d 606, 334 N.E.2d 566 [1975], citing, Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461; Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 56 L.Ed. 500; People v. Rossborough, 27 N.Y.3d 485, 489, 34 N.Y.S.3d 399, 54 N.E.3d 71 [2016]; People v. Chambliss, 106 Misc.2d 342, 344-345, 431 N.Y.S.2d 771 (County Court, Westchester County, 1980). As a result, the defendant's right to be personally present in court is clearly waivable under both the Federal and State Constitutions. People v. Epps, supra at 349, 372 N.Y.S.2d 606, 334 N.E.2d 566 (1975). A "defendant may waive his right to be present by consent or misconduct." Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 78 L.Ed. 674; People v. Epps, supra at 349, 372 N.Y.S.2d 606, 334 N.E.2d 566; People v. Parker, 57 N.Y.2d 136, 454 N.Y.S.2d 967, 440 N.E.2d 1313 (1982); Taylor v. US, 414 U.S. 17 (1973); People v. Sanchez, 65 N.Y.2d 436, 443 (1985).
For a waiver to be valid, it must be a knowing, voluntary, and intelligent decision, which may be express or implied, as compared to a forfeiture which occurs by operation of law, based on objective facts and circumstances, and without regard to defendant's state of mind. People v Hall, 49 Misc.3d 1204 (A)(Crim. Ct., Kings County, 2015), citing, People v. Corley, 67 N.Y.2d 105, 110 [1986]; People v. Parker, 57 N.Y.2d 136, 140, 454 N.Y.S.2d 967, 440 N.E.2d 1313 (1995).
In the present case, the defendant does have a right to waive his personal appearance at a felony hearing provided that the court determines that such waiver was being exercised "knowingly, voluntarily and intelligently." People v Chambliss, 106 Misc.2d 342 (County Court, Westchester County, 1980), citing, People v. Epps, 37 N.Y.2d 343, 372 N.Y.S.2d 606, 334 N.E.2d 566; Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461; CPL § 180.60(2). See also, People v James, 100 A.D.2d 552, 553 (2d Dept. 1984). Here, both defense counsel and the defendant requested to waive his right to personally appear in court for the preliminary hearing, since the defendant was under lockdown at jail after a recent exposure to the coronavirus. Prior to the hearing, on the record, this Court inquired of the defendant concerning his request to waive his right to personally appear at the preliminary hearing. The defendant expressed a clear knowledge of his right to be personally present at the hearing, his right to an adjournment of the hearing to allow the defendant to personally appear after the period of his quarantine expired, whether he had enough time to discuss the hearing and his rights with his attorney, and whether he desired to waive his right to personally appear at the preliminary hearing. The defendant stated that he did not want to adjourn or delay the hearing, and that he wanted to waive his right to personally appear at the hearing and requested to appear electronically via the Court's Microsoft Teams videoconferencing format. The defendant stated that his decision to waive his personal appearance was voluntary and had not been forced, compelled, or coerced upon him.
Use of Virtual Proceedings in Criminal Hearings
Based on the defendant's waiver of his right to personally appear for the preliminary hearing, and the request of both the defendant and defense counsel to allow the defendant to appear electronically for the hearing, this Court holds that, under the circumstances presented in this case, the defendant has the right to consent to appear electronically for a preliminary hearing, despite the language of CPL § 182.20.
Prior to the Covid-19 pandemic, virtual court appearances or "electronic appearances," were only authorized in certain counties, which includes Warren County. See, CPL 182.20[1]; People v Jackson, 69 Misc.3d 1054, 1058 (Sup. Ct., Queens County, 2020). An "electronic appearance" is defined in the CPL as an appearance conducted by videoconference in which "all of the participants are simultaneously able to see and hear" each other, and the defendant is either present with counsel, "or if the defendant waives the presence of counsel on the record," the defendant and his or her attorney can be in separate locations, as long as they "are able to see and hear each other and engage in private conversation" See, CPL 182.10[2].
The CPL imposes several restrictions on electronic appearances. A court may only conduct an electronic appearance when the defendant consents, after having the opportunity to consult with counsel about the nature of the proceeding (CPL 182.20[1]). Moreover, once an electronic appearance has commenced, the appearance must be "terminated" if either party requests it and provides any "articulated reason" (CPL 182.20[1]). Generally, an electronic appearance cannot be utilized where, for instance, a defendant is pleading guilty to a felony, or being sentenced following a felony conviction (CPL 182.30[1]) and a defendant may not plead guilty to a misdemeanor during an electronic appearance when the sentence that will be imposed exceeds the time the defendant has already served, unless that sentence will only be imposed if the defendant fails to meet the conditions of receiving a non-incarceratory sentence (CPL 182.30[4], [5]). As is relevant in this case, CPL § 182.20(1) provides that a defendant may not appear remotely at a hearing or trial. This provision would generally prohibit a court from allowing a defendant to appear electronically at a preliminary hearing.
Where, as here, a statute is designed for the protection of the defendant, our courts have interpreted mandatory language to allow the defendant to waive the mandate, such as the requirement of a personal appearance. See, People v Epps, 37 N.Y.2d 343, cert. den., 423 U.S. 999; People v Huggler, 50 A.D.2d 471, 473-474; P eople v Aiken, 45 N.Y.2d 394, 397; Diaz v United States, 223 U.S. 442, 455; Snyder v Massachusetts, 291 U.S. 97, 106; Illinois v Allen, 397 U.S. 337, 343; People v Chambliss, 106 Misc.2d 342 (County Court, Westchester County, 1980).
Thus, the courts have held that, in extraordinary circumstances, a judge has the discretion to disregard the restrictive provisions of CPL 182.20 and invoke the court's inherent authority to allow an electronic appearance by the defendant even where the statute prohibits it. People v Jackson, 69 Misc.3d 1054, 1059 (Sup. Ct., Queens County, 2020), citing, People v. Krieg, 139 A.D.3d 625, 32 N.Y.S.3d 161 (1st Dept. 2016) (trial court should not have limited the defendant's choices to appearing in person despite his medical problems, or waiving his appearance entirely, because his request to appear by videoconferencing should have been granted).
As noted in Jackson, the "courts continue to have the flexibility to conduct virtual appearances in certain situations where, ordinarily, an in-person appearance would be required by the Criminal Procedure Law-which makes perfect sense, since, regrettably, the pandemic is not yet over." People v Jackson, 69 Misc.3d 1054, 1061 (Sup. Ct., Queens County, 2020). The "courts' authority to determine the most effective way to conduct certain proceedings - including whether to conduct them in court, in the traditional manner, as opposed to virtually, by videoconference - derives from their inherent authority to create processes to administer justice." Id. at 1061.
In the present case, both the defendant and defense counsel requested that the preliminary hearing be conducted via the Court's Microsoft Teams format. Defense counsel is correct that the courts have effectively used this videoconferencing format successfully during this pandemic. The Court's videoconferencing format allows the defendant and defense counsel to have confidential discussions during the proceedings. The videoconferencing equipment provides the defendant with an opportunity to see and hear witnesses' testimony, and to review exhibits being offered into evidence. The proper administration of justice mandates a decision to grant the defendant's request to allow the defendant to appear electronically at the hearing. Otherwise, the Court is left with the options of either adjourning the preliminary hearing, without the defendant's consent, or allowing the hearing to proceed without the defendant being present based on his waiver of his personal appearance. If the hearing was adjourned, the Court may be required to deny the defendant's request to be released in his own recognizance, if the People demonstrate a compelling fact that precluded disposition of the felonies at a hearing [CPL 180.80(3)].
Allowing the defendant to appear electronically is preferable where, as here, the defendant is in custody under quarantine because of close contact with a COVID-19 positive inmate, and the defendant did not cause the present issues concerning his inability to appear at the hearing. Finally, since a defendant can waive his or her personal appearance entirely, there seems to be absolutely no logical reason why a defendant cannot waive his right to be personally present in court for a preliminary hearing and consent to a virtual appearance at a preliminary hearing, especially where, as here, an emergency has occurred that was not caused by the defendant. People v Jackson, 69 Misc.3d 1054, 1059 (Sup. Ct., Queens County, 2020); People v. Krieg, 139 A.D.3d 625, 32 N.Y.S.3d 161 (1st Dept. 2016). The purpose of the prohibition in CPL 182.30[1] of the court conducting trials or hearings virtually is to ensure that the courts protect the defendant's right to personally appear at crucial stages of the case. Nothing in CPL 182.30 prohibits a defendant from requesting and consenting to appear virtually at a hearing.
Based on the foregoing, the defendant's motion seeking to appear virtually via the Court's Microsoft Teams format for the preliminary hearing is granted, notwithstanding the language of CPL § 182.20(1).