Opinion
December 16, 1985
Appeal from the Supreme Court, Suffolk County (Stark, J.).
Judgment affirmed.
With respect to defendant's claim that he did not voluntarily and intelligently waive his Miranda rights, we note that an express waiver is not required and the totality of the circumstances must be considered (see, North Carolina v Butler, 441 U.S. 369, 373; People v Davis, 79 A.D.2d 547, affd 55 N.Y.2d 731; People v Norris, 75 A.D.2d 650). In determining the totality of the circumstances as to whether an alleged waiver is knowing, intelligent and voluntary, the court may consider a defendant's prior involvement with the law (People v Harris, 79 A.D.2d 615) and his express indication that he understands his constitutional rights (People v Norris, supra). Here, defendant, who has had extensive prior contact with the criminal justice system, expressly waived his rights. After being read Miranda warnings and asked if he understood them, he responded "I don't have to give you any statements. I know I don't have to, but I shot her and I shot her twice and I killed her". He then stated "You caught me in the house. It's my gun * * * Ain't nobody else did it". Defendant later signed a written statement upon which he wrote the word yes and his initials next to each Miranda right and also indicated that he did not want a lawyer during questioning. "`[W]here * * * a defendant in custody has been fully informed of his rights and has indicated that he understands them, his subsequent voluntary decision to speak to the police without requesting an attorney may, in all but the most unusual circumstances, be held to constitute a valid waiver'" (People v Campbell, 81 A.D.2d 300, 308). The circumstances presented at bar were not "all but the most unusual" and the court's ruling denying suppression was correct.
We further note that defendant engaged in disruptive behavior during the suppression hearing including continuous interruption of witnesses, shouting of obscenities and requests to leave the courtroom. Defendant was warned that a continuation of such conduct would result in his being gagged or removed. The warning was to no avail, as his later behavior included the use of profanity, as well as throwing objects at and threatening the jury and the Judge and throwing a transcript.
Defendant was ordered removed from the courtroom for misconduct following an outburst early in the trial; no objection was taken. He was permitted to listen to the proceedings in a detention area by use of a sound system, and allowed to return to the courtroom on several occasions, each return being conditioned upon a promise to behave, promises which defendant ignored. We find that the trial court did not abuse its sound discretion by removing defendant from the courtroom under circumstances by which he effectively waived his constitutional right to be present (see, People v Johnson, 37 N.Y.2d 778; see also, People v Palermo, 32 N.Y.2d 222).
We have reviewed defendant's other contentions and find them to be without merit. Brown, J.P., Rubin, Lawrence and Kooper, JJ., concur.