| People v Williams |
| 2017 NY Slip Op 01238 [147 AD3d 983] |
| February 15, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michael A. Williams, Appellant. |
Neal D. Futerfas, White Plains, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Alfieri, J.),rendered March 8, 2012, convicting him of criminal sale of a controlled substance in the thirddegree (four counts) and criminal possession of a controlled substance in the third degree (fourcounts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was convicted of four counts of criminal sale of a controlled substance in thethird degree and four counts of criminal possession of a controlled substance in the third degreefor selling to an undercover police officer and a confidential informant two bags of heroin eachon July 15, 2010, and for selling to the same undercover officer and confidential informantanother two bags of heroin each on July 16, 2010. Both drug transactions occurred on the samestreet in the City of Poughkeepsie and were recorded on videotape and audiotape.
Contrary to the defendant's contention, his right to a public trial was not violated by thetemporary exclusion of members of the public from the courtroom owing to overcrowding, or theremoval from the courtroom by court officers of two of the defendant's friends who werecommunicating with the defendant during the trial (see People v Colon, 71 NY2d 410,416 [1988]; People v Cosentino, 198 AD2d 294, 295 [1993]).
Further, after the defendant absconded during the trial, the County Court properly continuedthe trial in his absence. Although a defendant has a fundamental right to be present at all materialstages of his trial (see People v Dokes, 79 NY2d 656, 659 [1992]; CPL 260.20, 340.50),he may forfeit that right by deliberately absenting himself from the proceedings (see People vBrooks, 75 NY2d 898, 899 [1990]; People v Sanchez, 65 NY2d 436, 443-444[1985]). When a defendant is absent from the courtroom after trial has begun, the court shouldinquire and recite on the record the facts and reasons it relied upon in determining that thedefendant's absence was deliberate before proceeding in the defendant's absence (see People vBrooks, 75 NY2d at 899). Here, the record supports the court's determination, made after aninquiry, that the defendant's absence at the time his trial reconvened was deliberate (see People v Jenkins, 45 AD3d864, 865 [2007]; People vCollins, 29 AD3d 434, 434 [2006]; People v Green, 216 AD2d 581, 582 [1995])and that, therefore, his conduct "unambiguously indicate[d] a defiance of the processes of law"sufficient to effect a forfeiture of his right to be present (People v Sanchez, 65 NY2d at444; see People v Fields, 115 AD3d673, 674-675 [2014]; People vTraylor, 74 AD3d 1251, 1252 [2010]; cf. People v Lamb, 235 AD2d 829, 829[1997]).
[*2] After a "probing and tactful inquiry"(People v Buford, 69 NY2d 290, 299 [1987]), the County Court properly discharged asworn juror who recognized a spectator in the courtroom as a long-time acquaintance. Thetotality of the juror's statements, including her statement that she could not be fair and impartial,coupled with the court's evaluation of her upset demeanor, described by the court on the record,established that she was grossly unqualified to continue to serve (see CPL 270.35 [1]; People v Baum, 54 AD3d 605,605 [2008]; People v Tisdale, 270 AD2d 917 [2000]; People v Carrasco, 262AD2d 50 [1999]; People v Ocasio, 258 AD2d 303 [1999]; People v Galvin, 112AD2d 1090, 1090-1091 [1985]).
The defendant's contention that certain remarks made by the prosecutor during summationdeprived him of a fair trial is, for the most part, unpreserved for appellate review, since he failedto object to most of the remarks at issue (see CPL 470.05 [2]; People v Romero, 7 NY3d 911,912 [2006]; People v Williams, 123AD3d 1152, 1154 [2014], lv granted 25 NY3d 1173 [2015]; People v Martin, 116 AD3d 981,982 [2014]; People v Stewart, 89AD3d 1044, 1045 [2011]). In any event, although some of the prosecutor's remarksimproperly appealed to the jury's fears and passions with regard to drug dealing (see People vDavis, 256 AD2d 474, 474 [1998]; People v Hill, 193 AD2d 619 [1993]; Peoplev Odle, 187 AD2d 536, 537 [1992]), they were not so flagrant or pervasive as to deprive thedefendant of a fair trial (see People vForde, 140 AD3d 1085, 1086 [2016]; People v Thompson, 125 AD3d 899, 900 [2015]; People v Ward, 106 AD3d 842[2013]). Contrary to the defendant's further contention, under the circumstances of this case, theprosecutor's highlighting of certain evidence admitted at the trial through the use of slides asvisual aids during summation was not error (see People v Santiago, 22 NY3d 740, 750 [2014]; People v Berry, 110 AD3d 1002[2013], affd 27 NY3d 10 [2016]; People v Tiro, 100 AD3d 663 [2012]).
The sentence imposed was not excessive.
The defendant's remaining contentions are without merit. Rivera, J.P., Dillon, Chambers andHinds-Radix, JJ., concur.