Opinion
No. 2024-50193 No. 2022-648 OR CR
02-08-2024
The People of the State of New York, Respondent, v. Yon R. Woodson Renner, Appellant.
Yon R. Woodson Renner, appellant pro se. Orange County District Attorney (Andrew R. Kass of counsel), for respondent.
Unpublished Opinion
Yon R. Woodson Renner, appellant pro se.
Orange County District Attorney (Andrew R. Kass of counsel), for respondent.
PRESENT:: TIMOTHY S. DRISCOLL, J.P., JAMES P. McCORMACK, GRETCHEN WALSH, JJ
Appeal from a judgment of the City Court of Middletown, Orange County (Steven W. Brockett, J.), rendered July 21, 2022. The judgment convicted defendant, upon a jury verdict, of criminal trespass in the second degree and criminal contempt in the second degree, and imposed sentence.
ORDERED that the judgment of conviction is affirmed.
Defendant was charged with one count of criminal trespass in the second degree (Penal Law § 140.15 [1]) and one count of criminal contempt in the second degree (Penal Law § 215.50 [3]).
After the issuance of a bench warrant for defendant's arrest due to her failure to appear in court on April 29, 2022, defendant was remanded without bail. A jury trial was scheduled for June 13, 2022. On June 10, 2022, defendant appeared with counsel and the court informed defendant, that if she failed to appear in court for trial, the trial would proceed in her absence (see People v Parker, 57 N.Y.2d 136 [1982]). When the case was called for trial, defendant was not present, and the court conducted an inquiry to determine whether the trial should proceed in defendant's absence. The court was advised by defense counsel that defendant had refused to leave her jail cell. The court also referred to email correspondence between his court clerk and the jail personnel indicating that defendant would not leave her cell to appear at trial. The court instructed his clerk to contact the Sheriff and have him ask defendant to appear in person or virtually for trial. The court was subsequently informed that defendant was refusing to leave her cell or appear virtually. The court determined that defendant deliberately absented herself from the trial and the court conducted a trial in absentia.
At the jury trial, a certified copy of an order of protection that was in effect from August 21, 2019 to August 21, 2021 was admitted into evidence which contained a stay-away provision from, among other things, defendant's ex-husband's home. The order also indicated that the court had advised defendant of its issuance and contents and that she was personally served in court with a copy of the order.
Defendant's ex-husband testified that, on December 4, 2019, he saw defendant on his security video at his home unlocking the front door and entering his home, with the aid of another individual, in violation of the order of protection that was in effect. He further testified that he saw defendant in court on the day the order was issued and that he observed the court inform her of the contents of the order and serve her with a copy of the order. Following the trial, defendant was convicted of criminal trespass in the second degree and criminal contempt in the second degree, and sentence was imposed.
On appeal, defendant contends that the trial court violated her right to be present in the courtroom during her trial, that the evidence was legally insufficient to establish her guilt of the charges beyond a reasonable doubt, that the verdict was against the weight of the evidence, that she was never arraigned on the charges and that she was denied the right to the effective assistance of counsel because, among other grounds, no trial order of dismissal was sought raising as an issue that the proof at trial did not establish that she had knowledge of the order of protection.
"A defendant's right to be present at a criminal trial is encompassed within the confrontation clauses of the State and Federal Constitutions (NY Const, art I, § 6; U.S. Const 6th Amdt) and the Criminal Procedure Law (CPL 260.20, 340.50). Of course the right to be present may, as a general matter, be waived under both Constitutions" (People v Parker, 57 N.Y.2d at 139, citing Diaz v United States, 223 U.S. 442 [1912] and People v Byrnes, 33 N.Y.2d 343 [1974]). "[A] defendant may forfeit [her] right to be present when [her] conduct unambiguously indicates a defiance of the processes of law" (People v Hendrix, 63 A.D.3d 958, 958 [2009] [internal quotation marks omitted]; see People v Redzeposki, 7 N.Y.3d 725, 726 [2006]; People v Amato, 172 A.D.2d 545, 545 [1991]). "Whenever there is a waiver by an incarcerated defendant it will be suspect and subjected to careful examination. If a judicial inquiry discloses the slightest hint of official connivance or obstruction with respect to the defendant's right to be present at [her] trial, that waiver will not be operative" (People v Epps, 37 N.Y.2d 343, 350 [1975]). However, the court is not required to send officers into a defendant's cell to bind and shackle the defendant and deliver her by force, merely so that she can waive in court her right to be present at trial (id. at 351). In determining whether a defendant has refused to be present for trial, a court may consider reliable information from court and correction personnel (see People v Harrell, 168 A.D.3d 591, 592 [2019]; People v Romance, 35 A.D.3d 201 [2006]; People v Trubin, 304 A.D.2d 312 [2003] [a communication received by the court from the Department of Correction is sufficient to establish a defendant's waiver to be present at trial]).
Here, the court did not improvidently exercise its discretion in trying defendant in absentia. The record establishes that defendant was informed, in accordance with Parker (57 N.Y.2d at 140), of her right to be present at trial as well as the consequences of failing to appear. "[I]n determining that defendant had, in fact, refused to be present, the court properly acted on reliable information from court and correction personnel" that defendant refused to leave her cell or appear virtually (Harrell, 168 A.D.3d at 592; Trubin, 304 A.D.2d at 312).
Defendant failed to preserve her challenge to the legal sufficiency of the evidence, as defendant's counsel did not make a motion to dismiss at the close of all of the evidence (see People v Hawkins, 11 N.Y.3d 484, 492-493 [2008]; People v Hines, 97 N.Y.2d 56 [2001]; People v Gray, 86 N.Y.2d 10, 19-20 [1995]). In any event, viewing the evidence in the light most favorable to the People (see People v Delamota, 18 N.Y.3d 107, 113 [2011]; People v Acosta, 80 N.Y.2d 665, 672 [1993]), we find that the evidence adduced at trial was legally sufficient to establish defendant's guilt of criminal trespass in the second degree and criminal contempt in the second degree beyond a reasonable doubt (see generally People v Danielson, 9 N.Y.3d 342, 349 [2007]). Furthermore, upon exercising our factual review power (see CPL 470.15 [5]; Danielson, 9 N.Y.3d at 348-349), while according great deference to the jury's credibility determinations (see People v Romero, 7 N.Y.3d 633, 644 [2006]; People v Mateo, 2 N.Y.3d 383, 410 [2004]; People v Bleakley, 69 N.Y.2d 490, 495 [1987]), we are satisfied that the verdict was not against the weight of the evidence (see People v Martin, 52 Misc.3d 140 [A], 2016 NY Slip Op 51166[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; People v Celifie, 47 Misc.3d 133 [A], 2015 NY Slip Op 50466[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]).
Contrary to defendant's contention, defense counsel cannot be faulted for failing to move for a trial order of dismissal on the ground that there was no proof establishing that she had knowledge of the order of protection, as such a motion would have had little or no chance of success based on the order of protection itself and the trial testimony of the victim (see People v Ennis, 11 N.Y.3d 403, 415 [2008]; People v Caban, 5 N.Y.3d 143, 152 [2005]; People v Stultz, 2 N.Y.3d 277, 287 [2004]; People v Moss, 138 A.D.3d 761, 762 [2016]). Overall, the record reflects that counsel pursued a rational trial strategy, delivered coherent opening and closing statements, and effectively cross-examined the prosecution's witnesses (see People v Jenkins, 103 A.D.3d 753, 753 [2013]; People v Alexander, 56 A.D.3d 793, 793 [2008]). Therefore, defense counsel provided defendant with meaningful representation in accordance with both the federal and state standards (see U.S. Const 6th Amend; NY Const, art I, § 6; Strickland v Washington, 466 U.S. 668, 687 [1984]; People v Benevento, 91 N.Y.2d 708, 713 [1998]). As defendant's complaint concerning counsel's effectiveness is partially predicated on factors outside the record, such claim must be raised via a CPL 440.10 motion.
Defendant's contention that no arraignment took place is not preserved for our review (see People v Littleton, 53 A.D.3d 801 [2008]; People v Banks, 38 A.D.3d 938, 939 [2007]). In any event, this error is not fundamental, and, "inasmuch as defendant appeared in court with [an] attorney and submitted to the court's jurisdiction, consented to the assignment of a trial date and... proceeded to trial fully aware of the charge[s] asserted," defendant suffered no prejudice by the procedure followed (People v Hallenbeck, 81 A.D.3d 1077, 1079 [2011]; see People v Brigandi, 57 Misc.3d 5, 7 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; People v Repanti, 40 Misc.3d 131[A], 2013 NY Slip Op 51132[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2013], affd 24 N.Y.3d 706 [2015]).
Accordingly, the judgment of conviction is affirmed.
DRISCOLL, J.P., McCORMACK and WALSH, JJ., concur.