| People v Coppin |
| 2008 NY Slip Op 07772 [55 AD3d 374] |
| October 16, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v BarryCoppin, Appellant. |
—[*1] Barry M. Coppin, appellant pro se. Robert M. Morgenthau, District Attorney, New York (Rena Paul of counsel), forrespondent.
Judgment, Supreme Court, New York County (Charles J. Tejada, J.), rendered October 11,2006, convicting defendant, after a jury trial, of kidnapping in the second degree, attempted rapein the first degree, criminal sexual act in the first degree and sexual abuse in the first degree, andsentencing him, as a persistent violent felony offender, to an aggregate term of 45 years to life,unanimously modified, on the law, to the extent of vacating the sex offender risk leveldetermination without prejudice to future proceedings, and otherwise affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis fordisturbing the jury's determinations concerning credibility, including its evaluation of the effectof the victim's drug use on her perceptions at the time of the crime, and its rejection ofdefendant's testimony.
Defendant waived his right to be present at a Sandoval/Molineux hearingwhen he refused to be produced in the courtroom (see People v Spotford, 85 NY2d 593,598-599 [1995]; People v Epps, 37 NY2d 343, 349-351 [1975], cert denied 423US 999 [1975]). Defense counsel reported to the court that defendant refused to enter thecourtroom for any purpose, including the purpose of waiving his right to be present. By sendingdefense counsel to explain to defendant his right to be present and inform him that theproceedings would continue in his absence if he waived that right, the court did not delegate ajudicial function (see People v Felder, 17 AD3d 126, 127 [2005], lv denied 5NY3d 788 [2005]). The court, not counsel, made the determination that defendant had waived hisright to be present; indeed, counsel objected to the court's ruling that defendant had waived hisrights. We also conclude that the court properly exercised its discretion when, citing potentialdanger to court and Department of Correction personnel, it declined to order defendant forciblyproduced for the purpose of advising him of his right to be present and securing an expresswaiver of that right.
Defendant's refusal to be produced for sentencing made it impossible for the court to clarifydefendant's position as to whether he wished to proceed with counsel or represent himself [*2]for that proceeding (see People v Lineberger, 98 NY2d 662[2002]). In any event, given the surrounding circumstances, any violation of defendant's right tocounsel at sentencing had no adverse impact, and he is not entitled to the remedy of a remand forresentencing (see People v Wardlaw, 6 NY3d 556, 559-561 [2006]), which "would serveno useful purpose." (People v Adams, 52 AD3d 243, 244 [2008].)
As the People concede, the court prematurely adjudicated defendant a level three sexoffender, without a recommendation from the Board of Examiners of Sex Offenders. Wetherefore vacate that determination. Such a determination should be made prior to defendant'srelease from prison in accordance with Correction Law § 168-l.
We have considered and rejected defendant's remaining claims, including those contained inhis pro se supplemental brief. Concur—Lippman, P.J., Andrias, Buckley, Sweeny andRenwick, JJ.