Opinion
No. 34846C–09.
2010-08-13
The PEOPLE of the State of New York, v. Jumoo BERNARDEZ, Defendant.
(July 12 Tr. at 4, Lines 5–6 and 9–16.)
Marlo Doman, Esq., Assistant District Attorney, Criminal Court Bureau Bronx, Michael Hughes, Esq., Bronxville, for Defendant.
COLLEEN DUFFY, J.
Defendant was charged with Assault in the Third Degree, P.L. 120.00(1), Criminal Mischief in the Fourth Degree, P.L. 145.00(1), Criminal Trespass in the Second Degree, P.L. 140.15, and Harassment in the Second Degree, P.L. 240.26(1).
On July 29, 2010, the People made an oral application to proceed to a trial against Defendant, in absentia, contending that Defendant voluntarily had failed to appear for trial on July 12, 2010. Defendant's counsel, Michael Hughes, Esq., opposed the application contending that Defendant had not received the requisite notice of the scheduled trial. On July 29, 2010, the Court held a Parker hearing to determine whether Defendant had knowingly and voluntarily waived his right to be present at the trial scheduled on July 12, 2010.
At the hearing, the Court noted that it would take judicial notice of the Court's file on the case, including the court action sheet that contains each judge's notations of the action taken on the date in which the case is pending before him/her. Additionally, the Court noted that it would take judicial notice of the written transcript of the July 12, 2010 proceeding before Justice Lieb, which was the proceeding at which the trial date was set for (that same day) as well as, as of this date, the last proceeding at which Defendant appeared.
On July 12, 2010, the matter was pending before the Honorable Judith Lieb. On that date, the People announced readiness for trial; Defendant notified the Court that he, too, was prepared to proceed to trial on this matter. Justice Lieb advised the parties that they were to report forthwith to the courtroom of the Honorable William Mogulescu to commence the trial. At that time, Justice Lieb expressly directed Defendant to go to Judge Mogulescu's courtroom and informed Defendant that he had the right to be present at the trial, but that if he failed to appear for the proceeding, the People could proceed to trial in his absence. Justice Lieb also informed Defendant that if he were to be convicted, he could be sentenced, in absentia, and that it was very important for Defendant to go with his attorney so that he could assist the attorney “in his defense.” See Transcript of July 12, 2010 proceeding before Justice Judith Lieb at p. 4, Lines 9–15 (“July 12 Tr.”) Justice Lieb then asked Defendant if he understood and Defendant replied, “Yes.” Id. at p. 4, Lines 15–16.
The parties then reported to Judge Mogulescu's courtroom forthwith and were informed by Judge Mogulescu's clerk John Finch that they were to report back to court in the afternoon as Judge Mogulescu had other cases to complete that morning.
Although the parties' conversation with the clerk was not recorded, both the People and Defendant's counsel agree that such conversation occurred. See Transcript of Parker Hearing, July 29, 2010.
In the afternoon of that same date, Defendant did not appear for the trial. At that time, the People requested that the Court issue a bench warrant; the Court granted the application and issued a bench warrant which remains outstanding to date.
Defendant still has not appeared before the Court and the People now seek to proceed to trial in his absence. CONCLUSIONS OF LAW
The People of the State of New York may proceed to trial against a defendant, who is not present at the trial, when that defendant has effected a voluntary, knowing and intelligent waiver of his/her right to be present at such a trial. People v. Parker, 57 N.Y.2d 136, 141 (1982). Such a waiver requires a showing that the defendant was informed of the right to be present at the trial, that defendant knew or should have known of the scheduled trial date, and that defendant was apprised or otherwise aware that the trial against him would proceed in his absence. Id. Typically, such waiver is demonstrated by a showing that defendant was advised of such rights and still failed to appear at the scheduled trial. Parker, 57 N.Y.2d at 141;see also People v. Quinones, 74 AD3d 494 (1st Dept.2010) (trial proceeded in defendant's absence when record demonstrated that court informed defendant of consequences of failure to appear and he forfeited right to be present).
Here, the record shows that Defendant was informed of the scheduled trial and the consequences of his failure to appear for such trial:
THE COURT:Sir, I am sending your case out for trial. You're to
go—...
* * *
THE COURT:Go right now Mr. Bernardez to room 350. If you don't go, the judge can hold a trial in your absence. If you're convicted, the judge can sentence you in your absence. So it's very important that you go with your attorney right now to assist in your defense. Do you understand that?
THE DEFENDANT:Yes.
(July 12 Tr. at 4, Lines 5–6 and 9–16.)
Justice Lieb expressly warned Defendant that if he failed to appear for the proceeding, the People could proceed to trial in his absence and advised Defendant to go immediately with his attorney. Id. at 4, Lines 9–10. Thereafter, the parties were told by Judge Mogulescu's clerk to come back (to room 350) in the afternoon. Defendant then failed to appear. These facts evince a voluntary, knowing and intelligent waiver by Defendant of his right to be present at trial. Parker, 57 N.Y.2d at 141;People v. Quinones, 2010 Slip Op. 4860, *1, 904 N.Y.S.2d at 9.
Accordingly, the Court grants the People's application to proceed to trial, in Defendant's absence, forthwith.
This constitutes the Decision and Order of this Court.