| People v Severino |
| 2007 NY Slip Op 08260 [44 AD3d 1077] |
| October 30, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JuanSeverino, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonardo Joblove, Victor Barall, andJoseph Huttler of counsel), for respondent.
Appeals by the defendant from (1) a judgment of the Supreme Court, Kings County (Carroll,J.), rendered May 29, 2003, convicting him of criminal possession of a controlled substance inthe seventh degree under indictment No. 5370/02, upon a jury verdict, and imposing sentence,and (2) an amended judgment of the same court rendered July 3, 2003, revoking a sentence ofprobation previously imposed by the same court (Ambrosio, J.), upon a finding that he hadviolated a condition thereof, after a hearing, and imposing a sentence of imprisonment upon hisprevious conviction of attempted criminal possession of a controlled substance in the thirddegree under indictment No. 5118/00.
Ordered that the judgment and the amended judgment are affirmed.
The Supreme Court providently exercised its discretion in trying the defendant in absentia.The record reveals that the defendant was informed, in accordance with People v Parker(57 NY2d 136, 140 [1982]), of his right to be present at trial as well as the consequences offailing to appear. During jury voir dire, the defendant failed to return to court at the conclusion ofa lunch recess. Contrary to the defendant's contention, the People established at a hearing that areasonable effort had been made to locate him, and the trial court properly considered theappropriate factors before deciding to proceed with the trial in his absence (see People vParker, 57 NY2d at 142). In these circumstances, the defendant waived his right to be presentat trial (see People v Parker, 57 NY2d at 140-141) and, in any event, forfeited that rightby absconding after trial proceedings had commenced (see People v Sanchez, 65 NY2d436, 443-444 [1985]; People v James, 19 AD3d 615, 615-616 [2005]; People vAponte, 204 AD2d 339 [1994]).[*2]
The defendant's Batson challenges (see Batsonv Kentucky, 476 US 79 [1986]) were properly denied since he failed to make the requisiteprima facie showing of discrimination. Defense counsel relied solely on the proportion ofperemptory challenges used against black venirepersons and offered no showing of facts andcircumstances sufficient to raise an inference of a pattern of discrimination (see People vBrown, 97 NY2d 500, 507-508 [2002]; People v Thigpen, 14 AD3d 518 [2005];People v Rodriguez, 272 AD2d 482 [2000]).
The defendant's contention that the Supreme Court erred in admitting testimony concerningthe content of a police radio communication is without merit. The Supreme Court properlypermitted such testimony only to establish circumstances relevant to the arrest and not to bolsteridentification evidence (see People v Isaac, 222 AD2d 523, 524 [1995]; People vThompson, 202 AD2d 454, 455 [1994]; People v Burrus, 182 AD2d 634 [1992]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual reviewpower (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against theweight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The Supreme Court's decision to hold a hearing in absentia to determine whether thedefendant had violated a condition of his probation was not an improvident exercise ofdiscretion. The defendant had been advised at the time he was placed on probation that if hefailed to appear to answer a charge that he had violated a condition of probation, a hearing onthat charge could proceed in his absence and could result in revocation of his probation. Thehearing court properly determined that the defendant had been advised of his right to appear atthe hearing and the consequences of failing to appear in accordance with the requirements ofPeople v Parker (see People v Smith, 148 AD2d 1007, 1007-1008 [1989]). Inlight of the defendant's lengthy and unexplained absence, there is no indication in the record thatan adjournment would have resulted in his appearance.
The sentences imposed were not excessive (see People v Suitte, 90 AD2d 80 [1982]).Spolzino, J.P., Krausman, Goldstein and Dickerson, JJ., concur.