Opinion
527 KA 20-01636
06-30-2023
The PEOPLE of the State of New York, Respondent, v. Serina A. WOLFE, Defendant-Appellant.
MICHAEL J. PULVER, NORTH SYRACUSE, FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
MICHAEL J. PULVER, NORTH SYRACUSE, FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, CURRAN, BANNISTER, AND OGDEN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of grand larceny in the fourth degree ( Penal Law § 155.30 [4] ). Contrary to the contention of defendant, County Court did not abuse its discretion in holding a hearing, the trial, and sentencing in her absence. "Before proceeding in [a] defendant's absence, the court should [make an] inquiry and recite[ ] on the record the facts and reasons it relied upon [to determine whether the] defendant's absence was deliberate" ( People v. Brooks , 75 N.Y.2d 898, 899, 554 N.Y.S.2d 818, 553 N.E.2d 1328 [1990], mot to amend remittitur granted 76 N.Y.2d 746, 558 N.Y.S.2d 484, 557 N.E.2d 777 [1990] ). Here, the court provided defendant with the requisite warnings pursuant to People v. Parker , 57 N.Y.2d 136, 141, 454 N.Y.S.2d 967, 440 N.E.2d 1313 (1982), informed defendant of the hearing and trial dates, and granted several adjournments when defendant repeatedly failed to appear and failed to provide documentation to support her alleged reasons for failing to appear. At each failure of defendant to appear, the court inquired into the reason for defendant's absence and, after five failures to appear, the court determined that it would proceed in her absence due to the fact that she was unable to provide any evidence of a legitimate reason for missing several of those court appearances (see People v. Bynum , 125 A.D.3d 1278, 1278, 1 N.Y.S.3d 724 [4th Dept. 2015], lv denied 26 N.Y.3d 927, 17 N.Y.S.3d 89, 38 N.E.3d 835 [2015] ; People v. Zafuto , 72 A.D.3d 1623, 1623-1624, 902 N.Y.S.2d 269 [4th Dept. 2010], lv denied 15 N.Y.3d 758, 906 N.Y.S.2d 831, 933 N.E.2d 230 [2010] ; cf. People v. Houghtaling , 87 A.D.3d 1302, 1302, 930 N.Y.S.2d 521 [4th Dept. 2011] ; People v. McCullough , 209 A.D.2d 965, 965, 619 N.Y.S.2d 984 [4th Dept. 1994] ). We thus conclude that "the court made a proper inquiry and placed its reasoning on the record for determining that defendant's absence was deliberate" ( Zafuto , 72 A.D.3d at 1624, 902 N.Y.S.2d 269 ). Indeed, after being released on her own recognizance, defendant never once returned to court despite being informed of each court proceeding. Inasmuch as the hearing, trial and sentencing were held on four consecutive days, the court was not required to revisit the issue on each consecutive day.
We reject defendant's further contention that she was denied effective assistance of counsel when defense counsel failed to object when the court proceeded in defendant's absence. "There can be no denial of effective assistance of trial counsel arising from counsel's failure to ‘make a motion or argument that has little or no chance of success’ " ( People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ).