| People v Percer |
| 2011 NY Slip Op 09156 [90 AD3d 789] |
| December 13, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Rhashawn Percer, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Guy Arcidiacono of counsel; PatrickFedun on the brief), for respondent.
Appeal by the defendant (1) from a judgment of the County Court, Suffolk County (Braslow,J.), rendered September 21, 2010, convicting him of burglary in the first degree, attemptedrobbery in the first degree, criminal use of a firearm in the first degree, criminal possession of aweapon in the second degree, and assault in the second degree, upon his plea of guilty, andimposing sentence, and (2) from an order of the same court dated September 21, 2010, asamended, which summarily adjudged him in contempt of court pursuant to Judiciary Law article19.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed.
Where, as here, the purported contempt was committed within the immediate view andpresence of the court and was punished summarily, review must be had under CPLR article 78and not by way of direct appeal (see Judiciary Law §§ 752, 755; Matter of Julie G. v Yu-Jen G., 81AD3d 1079 [2011]; Matter of Kellyv Kelly, 34 AD3d 809 [2006]). Therefore, the appeal from the order must be dismissed.
The defendant's valid waiver of his right to appeal precludes appellate review of hischallenge to the factual adequacy of his plea allocution (see People v Chavez, 71 AD3d 781 [2010]).
Contrary to the defendant's contention, the sentencing court did not improvidently exerciseits discretion in denying, without a hearing, his pro se application to withdraw his plea of guilty(see People v Perez, 83 AD3d738 [2011]).
In addition, there is no merit to the defendant's contention that the sentencing court erred indenying his request to relieve his appointed counsel and to substitute new counsel. Thedefendant's request "was not sufficiently specific to require a minimal inquiry by the court, andcertainly did not warrant a grant of his motion" (People v Porto, 16 NY3d 93, 101 [2010]).[*2]
The defendant also contends that the sentencing courterred in sentencing him in absentia. The right to be present in the courtroom during one's trial isone of the most basic rights guaranteed by the Federal and New York Constitutions, and by statelaw (see US Const 6th Amend; NY Const, art I, § 6; CPL 260.20, 340.50;Illinois v Allen, 397 US 337, 338 [1970]; People v Williams, 85 NY2d 945, 947[1995]; People v Parker, 57 NY2d 136 [1982]; see also CPL 380.40 [1]).However, that right may be waived (see People v Parker, 57 NY2d at 139), and adefendant may forfeit his right to be present when his conduct "unambiguously indicates adefiance of the processes of law and it disrupts the trial after all parties are assembled and readyto proceed" (People v Sanchez, 65 NY2d 436, 444 [1985]; see People v Mitchell, 69 AD3d761 [2010]; People v Hendrix,63 AD3d 958 [2009]). Considering the defendant's obstreperous and disruptive behaviorduring sentencing, he forfeited his statutory and constitutional rights to be present, and thesentencing court providently exercised its discretion in sentencing him in absentia (see Peoplev Potter, 294 AD2d 603 [2002]; People v Curtis, 286 AD2d 900 [2001]). Rivera,J.P., Leventhal, Roman and Sgroi, JJ., concur.