| People v Major |
| 2009 NY Slip Op 09090 [68 AD3d 1244] |
| December 10, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Roger Major,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered December 29, 2003, upon a verdict convicting defendant of the crime of criminal saleof a controlled substance in the third degree (two counts).
Defendant was charged by indictment with two counts of criminal sale of a controlledsubstance in the third degree for selling cocaine to a confidential informant on two occasions. Athis jury trial, defendant was in attendance until the day that the jury was to be charged, when hefailed to reappear. County Court continued the trial without him and the jury convicted him ascharged. Defendant also was absent when the court sentenced him to two consecutive terms of10 to 20 years in prison.
Defendant contends on appeal that County Court erred in concluding the trial and imposingsentence in his absence. We cannot agree. While a defendant's right to be present at everymaterial stage of a trial is well established (see People v Roman, 88 NY2d 18, 26 [1996];People v Abdullah, 28 AD3d940, 941 [2006], lvs denied 7 NY3d 784 [2006]), it may be waived (see e.g.People v Vargas, 88 NY2d 363, 375-376 [1996]; People v Beverly, 6 AD3d 874, 875 [2004], lv denied 3NY3d 637 [2004]). For there to be such a waiver, however, it must be shown that the defendantwas informed of the right to be present at the proceedings and of the consequences for failing toappear, including the fact that the proceedings would go forward in [*2]his or her absence (see People v Parker, 57 NY2d 136, 141[1982]; People v Stroman, 6 AD3d818, 819 [2004], lv denied 3 NY3d 648 [2004]). In addition, before proceeding withsentencing in the defendant's absence, "the trial court must exercise its sound discretion uponconsideration of all appropriate factors, including the possibility that defendant could be locatedwithin a reasonable period of time" (People v Parker, 57 NY2d at 142). The recordconvinces us that these standards were satisfied here.
On at least three occasions prior to defendant's absence, County Court clearly andunequivocally informed him of his right to be present and warned that, if he failed to appear incourt when required, the trial and, if he were to be found guilty, the imposition of sentencewould be conducted in his absence. When defendant, who had been released on bail and attendedall prior proceedings accompanied by his mother, failed to appear at the time set for finalinstructions to the jury, neither his counsel nor his mother was able to explain his absence.County Court then adjourned the trial for three days from Friday morning to the followingMonday morning to afford defendant's counsel, his mother and the People an opportunity toinvestigate his absence. County Court also directed that inquiries be made to several policeagencies and hospitals, and issued a warrant for defendant's arrest. None of those efforts shedany light on defendant's whereabouts. Before resuming the trial, County Court also consideredthe likelihood that defendant would be located, the impact of delaying the trial at such a latestage and the inconvenience to the jury (see People v Parker, 57 NY2d at 142; Peoplev Stroman, 6 AD3d at 819; People v Thompson, 306 AD2d 758, 760 [2003], lvdenied 1 NY3d 581 [2003]).
Defendant also argues that he did not receive the effective assistance of counsel because hiscounsel failed to seek exclusion of the evidence showing that he had been found to be inpossession of a large sum of money. We disagree. Since defendant was charged with more thanone sale of cocaine and the money used in purchases by the confidential informant was foundmixed with the other funds (see People v Martin, 163 AD2d 491 [1990]), a motion toexclude this evidence likely would have been unsuccessful (see People v Jackson, 48 AD3d 891, 893 [2008], lv denied10 NY3d 841 [2008]). Inasmuch as defendant's counsel otherwise made appropriate motions,engaged in thorough cross-examination of the People's witnesses and presented a coherentdefense in challenging the credibility of the informant, defendant was afforded meaningfulrepresentation (see People v Benevento, 91 NY2d 708, 712-713 [1998]; People v Scanlon, 52 AD3d 1035,1040 [2008], lv denied 11 NY3d 741 [2008]).
Defendant's remaining contentions, to the extent that they are properly before us, have beenreviewed and found to be without merit.
Peters, J.P., Kane, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.