Opinion
May 11, 1990
Appeal from the Onondaga County Court, Mulroy, J.
Present — Denman, J.P., Boomer, Pine, Davis and Lowery, JJ.
Judgment unanimously affirmed. Memorandum: The evidence, when viewed in the light most favorable to the People (see, People v Ford, 66 N.Y.2d 428, 437), is legally sufficient to establish defendant's guilt of criminal sale of a controlled substance in the first degree (see, People v. Payne, 135 A.D.2d 746, lv denied 71 N.Y.2d 900) and criminal possession of a controlled substance in the second degree (see, People v. Torres, 68 N.Y.2d 677, 679; People v. Reisman, 29 N.Y.2d 278, 285-287, cert denied 405 U.S. 1041; People v. Harris, 47 A.D.2d 385, 388; cf., People v Ortiz, 126 A.D.2d 677, lv denied 70 N.Y.2d 652; People v. Reyes, 126 A.D.2d 681, lv denied 70 N.Y.2d 654). On this record, we also conclude that the verdict was not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495).
Additionally, the court did not err by proceeding with the trial in defendant's absence. After trial commenced, the court informed defendant that he had a right to be present at trial and that the trial would proceed even if he were absent. The court announced that the trial would resume five days later. Defendant did not appear at the scheduled time. Before proceeding with the trial, the court inquired regarding the circumstances surrounding defendant's absence. The court stated "[b]ased on counsel's representations, the [defendant] has left the area". Defense counsel confirmed that he did not know the whereabouts of his client. Thus, we conclude that defendant forfeited his right to be present when he deliberately failed to return to the courtroom after his trial had begun (see, People v Brooks, 75 N.Y.2d 890; People v. Sanchez, 65 N.Y.2d 436, 443-444). Further, under the circumstances of this case, defendant's "non-appearance" constituted a waiver of his right to be present at trial (People v. Quamina, 161 A.D.2d 1110 [decided herewith]; see also, People v. Parker, 57 N.Y.2d 136). Defendant's claim that he was improperly sentenced in absentia lacks merit (see, People v. Sanchez, supra, at 444). "[A] defendant who is properly tried in absentia may during his continued absence also be sentenced in absentia" (People v. Sanchez, supra, at 444). Finally, defendant's sentence was not harsh and excessive.