| People v Mitchell |
| 2010 NY Slip Op 00285 [69 AD3d 761] |
| January 12, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Desmond Mitchell, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky,and Kirkland & Ellis LLP [Adam A. Nagorski], of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mangano,Jr., J.), rendered February 24, 2006, convicting him of robbery in the first degree (two counts),upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
A defendant's right to be present in the courtroom during his or her trial is one of the mostbasic rights guaranteed by the Federal and New York Constitutions, and by statute (seeUS Const, 6th Amend; NY Const, art I, § 6; CPL 260.20, 340.50; Illinois v Allen,397 US 337, 338 [1970]; People v Parker, 57 NY2d 136 [1982]; People v Hendrix, 63 AD3d 958[2009], lv denied 13 NY3d 797 [2009]). However, that right may be waived (seePeople v Parker, 57 NY2d at 139), and a defendant may forfeit his right to be present whenhis conduct "unambiguously indicates a defiance of the processes of law and it disrupts the trialafter all parties are assembled and ready to proceed" (People v Sanchez, 65 NY2d 436,444 [1985]; see People v Hendrix,63 AD3d 958 [2009]).
At the defendant's first trial, he was removed from the courtroom due to his outbursts, but hewas permitted to return after promising to refrain from such outbursts. A mistrial wassubsequently declared for unrelated reasons. During his second trial, and despite extensivewarnings by the court prior to voir dire of the jury, the defendant again engaged in disruptivebehavior, including stating to the jury that his coperpetrator had made a statement thatexculpated him, claiming that he was not permitted to show the jury this statement, andproducing a piece of paper.
The Supreme Court subsequently removed the defendant from the courtroom and directedthat he was to participate in the remainder of his trial, which included summations, the jurycharge, deliberations, and the verdict, through the use of audio transmissions and discussionswith defense counsel. Prior to his removal, the defendant was given repeated admonitions andwarnings by the Supreme Court as well as defense counsel. The defendant was permitted toreturn to the courtroom for sentencing.
Under the circumstances of this case, the Supreme Court providently exercised its [*2]discretion in removing the defendant from the courtroom anddirecting that he was to participate in the remainder of his trial through the use of audiotransmissions and discussions with defense counsel because the defendant, by his conduct,forfeited his right to be present at his trial (see People v Hendrix, 63 AD3d 958 [2009]; People v Sanchez, 7 AD3d 645[2004]; People v Arias, 303 AD2d 592 [2003]; People v Joyner, 303 AD2d 421[2003]; People v Sherrod, 270 AD2d 366 [2000]).
The defendant's argument that curative instructions given by the court after his removal wereimproper is unpreserved for appellate review (see CPL 470.05 [2]), and, in any event,without merit.
In light of our determination that the defendant forfeited his right to be present in thecourtroom during his trial, the defendant's contention that he did not waive his right to be presentis academic. Rivera, J.P., Leventhal, Belen and Austin, JJ., concur.