| People v Ramos |
| 2009 NY Slip Op 03019 [61 AD3d 783] |
| April 14, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Ramon Ramos, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JeanetteLifschitz, Michael Wiesenfeld, and Howard McCallum of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Cooperman, J.), rendered February 22, 2006, convicting him of rape in the first degree, sodomyin the first degree (two counts), and robbery in the second degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The initial trial of the defendant resulted in a mistrial. Thereafter, at the second trial, thedefendant elected to exercise his right to self-representation. Contrary to the defendant'scontention, he was not denied that right when the court appointed a new attorney to act asstandby counsel (see People v Sawyer, 57 NY2d 12, 21 [1982]; cf. People v Smith,68 NY2d 737 [1986]).
The prosecution was not barred by the five-year statute of limitations pursuant to CPL 30.10(2) (b). Although the indictment was filed in May 2003, nearly 10 years after the incident, thedefendant's whereabouts were continuously unknown and continuously unascertainable by theexercise of reasonable diligence until his DNA profile from a sexual assault evidence kit wasmatched to DNA evidence taken from him pursuant to a subsequent incarceration (seeCPL 30.10 [4] [a] [ii]; People v Seda, 93 NY2d 307, 311 [1999]; People v Brown, 50 AD3d 1154[2008]; People v Grogan, 28 AD3d579, 580-581 [2006]; People vLloyd, 23 AD3d 296, 297 [2005]; People v Harrison, 22 AD3d [*2]236 [2005]).
Moreover, under the circumstances of this case, where the defendant waived his right to bepresent at trial and refused to leave the court confinement pens, the court did not delegate anessential judicial function to a court clerk when, at the court's direction, the clerk explained tothe defendant his right to be present and informed him that the trial would continue in hisabsence (see People v Epps, 37 NY2d 343 [1975]; People v Coppin, 55 AD3d 374, 375 [2008]; People v Felder, 17 AD3d 126,127 [2005]).
The defendant's contentions regarding an ex post facto prosecution and a violation of dueprocess during sentencing are unpreserved for appellate review and, in any event, are withoutmerit.
The defendant's contention, raised in his supplemental pro se brief, that the court improperlyassumed the role of an advocate, involves matter dehors the record and may not be reviewed ondirect appeal (see People v Purdie,50 AD3d 1065 [2008]). Rivera, J.P., Angiolillo, Eng and Belen, JJ., concur.