| People v Carter |
| 2012 NY Slip Op 00802 [91 AD3d 967] |
| Jnury 31, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v RudyCarter, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Yael V. Levy ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Samenga, J.,at trial; Peck, J., at sentence), rendered February 7, 2011, convicting him of rape in the firstdegree and sexual abuse in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
CPL 380.30 (1) mandates that the sentence of a criminal defendant "must be pronouncedwithout unreasonable delay." However, "[i]f the delay is caused by legal proceedings or otherconduct of the defendant which frustrates the entry of judgment, it is excusable" (People vDrake, 61 NY2d 359, 366 [1984]). This is true even where the delay is lengthy (see People v Davis, 29 AD3d 814,816 [2006]; People v Battles, 150 AD2d 785, 786 [1989]; People v Headley, 134AD2d 519, 519 [1987]).
In this case, the lengthy delay in sentencing was due solely to the fact that the defendantabsconded in the middle of the trial and remained at large for 29 years before he was arrested andreturned to the New York authorities. Although the defendant denies hiding, "the People do nothave a duty to make efforts to apprehend an absconding defendant" (People v Davis, 29AD3d at 816; see People v Headley, 134 AD2d at 519). Moreover, contrary to thedefendant's contention, there is nothing in the record to suggest that the New York authoritieswere ever "actually aware" of his whereabouts (see People v James, 78 AD3d 862, 863 [2010]; People vReyes, 214 AD2d 233, 236 [1995]; People v Battles, 150 AD2d at 785-786; cf.People v McNeil, 237 AD2d 622, 623 [1997]). Accordingly, the Supreme Court properlydenied that branch of the defendant's motion which was to dismiss the indictment pursuant toCPL 380.30 (1).
Further, while the minutes of the trial have been lost and the sentencing judge determinedthat reconstruction would be "impossible," the defendant is not entitled to summary reversalbecause these circumstances are attributable in large part to the lengthy delay caused by thedefendant himself (see People vParris, 4 NY3d 41, 48-49 [2004]; People v Quinones, 36 AD3d 459, 460 [2007]; People vDelarosa, 282 AD2d 296 [2001]).
The defendant's contention that reversal is required because the trial was concluded [*2]in his absence is without merit. Although a defendant has afundamental right to be present at all material stages of his trial, he or she may forfeit that right,inter alia, by deliberately absenting himself or herself after the trial has begun (see People vSanchez, 65 NY2d 436, 443-444 [1985]; People v Traylor, 74 AD3d 1251, 1252 [2010]; People v Jenkins, 45 AD3d 864,865 [2007]). Here, while the trial transcript has been lost and reconstruction is impossible due tothe delay caused by the defendant, he admits that he was present for several days of the trial andthat he deliberately "stopped going." Florio, J.P., Chambers, Hall and Miller, JJ., concur.