| People v Atkins |
| 2017 NY Slip Op 07342 [154 AD3d 1064] |
| October 19, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Edward L.Atkins Jr., Appellant. |
Richard Marris, Syracuse, for appellant.
William G. Gabor, District Attorney, Wampsville (J. Scott Porter of counsel), forrespondent.
Rumsey, J., Appeal from a judgment of the County Court of Madison County (McDermott,J.), rendered August 6, 2014, upon a verdict convicting defendant of the crimes of criminalpossession of a weapon in the second degree, criminal possession of a weapon in the third degreeand criminal possession of a weapon in the fourth degree.
In October 2012, the State Police obtained a search warrant for defendant's residence in theTown of Sullivan, Madison County. While troopers were on defendant's property for the purposeof executing the warrant, a vehicle operated by defendant's girlfriend, Dawn Moyer, was seenentering and, shortly thereafter, attempting to leave the property. The troopers stopped thevehicle and searched it while it was on defendant's property and seized numerous firearms that,in part, were the basis for the instant charges. As the vehicle was being searched, defendantexited his residence and spoke with the troopers present, stating that the weapons found inMoyer's vehicle belonged to him. The troopers then executed the warrant and searcheddefendant's residence, with defendant present, where additional weapons were seized. Defendantwas taken into custody and later gave a written statement admitting that he had been inpossession of the weapons seized.
Defendant subsequently was indicted and charged with one count of criminal possession of aweapon in the second degree, two counts of criminal possession of a weapon in the third degreeand two counts of criminal possession of a weapon in the fourth degree and was released on$5,000 cash bail. Following a hearing, County Court denied defendant's motion to suppress thefirearms and his statements. Upon a jury trial, for which he did not appear, defendant was [*2]convicted as charged and was sentenced to concurrent prison termsof five years for the criminal possession of a weapon in the second degree conviction,2
We agree that County Court erred in conducting defendant's trial in his absence. A defendanthas a constitutional and a statutory right to be present at his or her trial (see US Const 6thAmend; NY Const, art I, § 6; CPL 260.20; People v Parker, 57 NY2d 136,139 [1982]; People v June, 116AD3d 1094, 1095 [2014]; People v Sumner, 254 AD2d 537, 537 [1998]). "Althoughthe right to be present at a criminal trial may be waived, the right is of a fundamentalconstitutional nature and therefore the validity of any waiver including one which could beimplied, must be tested according to constitutional standards" (People v Parker, 57 NY2dat 140). "In order to effect a voluntary, knowing and intelligent waiver, the defendant must, at aminimum, be informed in some manner of the nature of the right to be present at trial and theconsequences of failing to appear for trial. This, of course, in turn requires that [the] defendantsimply be aware that trial will proceed even though he or she fails to appear" (id. at 141[citations omitted]).
Defendant was properly admonished of his right to be present at trial and the consequencesof failing to appear by County Court. In this regard, the court advised defendant at arraignmentthat it had jurisdiction to conduct any scheduled proceedings whether he was present and that hewould be bound by the outcome of any proceedings conducted in his absence upon his failure toappear (see People v Edmonds, 151 AD2d 829, 829-830 [1989], citing People vParker, 57 NY2d at 141). We also conclude that the record supports County Court'sdetermination that defendant had been notified of the trial date by his counsel. Defendant'scounsel received notice that the trial was scheduled to commence on May 5, 2014 prior to his lastmeeting with defendant in early April 2014, and County Court found, in open court withoutobjection or contradiction from defendant's counsel, that counsel had notified defendant of thetrial date.
Defendant did not appear for trial. "Even where, as here, 'a defendant has waived the right tobe present at trial by not appearing after being apprised of the right and the consequences ofnonappearance, trial in absentia is not thereby automatically authorized.' Rather, it must alsoappear from the record that the trial court considered 'all appropriate factors' before proceeding in[the] defendant's absence, 'including the possibility that [the] defendant could be located within areasonable period of time, the difficulty of rescheduling the trial and the chance that evidencewill be lost or witnesses will disappear.' As the Court of Appeals has instructed, 'in most casesthe simple expedient of adjournment pending execution of a bench warrant could provide analternative to trial in absentia unless, of course, the prosecution can demonstrate that such acourse of action would be totally futile' " (People v June, 116 AD3d at 1095,quoting People v Parker, 57 NY2d at 142 [brackets, italics and citations omitted]).
At a pretrial conference held on April 30, 2014, defendant's counsel moved to withdrawbecause defendant had not communicated with him during the preceding three weeks. Themotion was denied, and County Court, inferring that circumstances suggested that defendantmight not appear for trial, issued a bench warrant for defendant's arrest and scheduled aParker hearing for Friday, May 2, 2014. The bench warrant was forwarded to State PoliceInvestigator James Martin, who had been involved in the investigation and arrest of defendant.At the Parker hearing, Martin testified that after receiving the bench warrant, heconducted surveillance at several locations, including defendant's residence, the latter of whichhe found had been cleared [*3]of all furniture and personalpossessions. Martin also testified that he had been told by tenants at the property that defendanthad stated that he was leaving for Texas, where he had arranged employment, and directed thatrent be paid to his nephew. Martin also interviewed defendant's estranged wife, Gloria Atkins,who stated her belief that defendant had left the state. Defendant's counsel objected to the hearsaynature of these statements, but the objection was overruled on the basis that such statements werereceived, not for their truth, but to show what additional investigative actions Martin had taken inresponse thereto. On cross-examination, Martin admitted that he could not say that continuedefforts to find defendant would be totally futile.
When defendant failed to appear for the scheduled trial on Monday, May 5, 2014, theParker hearing was continued, and Martin testified that his subsequent efforts to locatedefendant were limited to approximately one hour of additional investigation conducted on thepreceding Friday afternoon because he had had the weekend off. At the conclusion of theParker hearing, County Court found that the evidence established that defendant hadabsconded and that there was no reason to postpone the trial; hence, the matter proceededimmediately to trial.
In making its determination to try defendant in absentia, County Court improperly consideredthe hearsay statements made by the individuals interviewed by Martin as direct evidence ofdefendant's unavailability. Moreover, the record demonstrates that County Court failed toproperly consider the appropriate factors. The fact that the trial commenced only five days afterissuance of the bench warrant—two of which were weekend days during which no activeeffort was made to locate defendant—"demonstrates only a minimal effort to locatedefendant prior to trial" (People v June, 116 AD3d at 1096 [internal quotation marks andcitation omitted]), and no consideration was given to the likelihood that defendant could belocated within a reasonable period of time (cf. People v Stroman, 6 AD3d 818, 819 [2004], lv denied 3NY3d 648 [2004]; People v Sumner, 254 AD2d at 537; People v Delvalle, 167AD2d 661, 661 [1990], lv denied 77 NY2d 837 [1991]). The record contains no evidencethat any difficulty would result from rescheduling the trial, and there was little chance that anadjournment would cause evidence to be lost or witnesses to disappear because the primarywitnesses were law enforcement officers and the evidence included defendant's admission topossession of the firearms that were seized. There also was no proof that further efforts to locatedefendant would have been futile. In short, there was no reason not to take the "simpleexpedient" of adjourning the trial pending execution of the bench warrant (People vParker, 57 NY2d at 142). Thus, it was error for County Court to proceed with defendant'strial, and the judgment of conviction must be reversed and the matter remitted for a newtrial.
Although our remittal renders defendant's remaining contentions academic, in light of theneed for a new trial, we address defendant's argument that County Court erred in denying hissuppression motion. In that regard, defendant first contends that the search warrant was invalidbecause it did not describe the premises to be searched with sufficient particularity. Theinvestigation commenced after Atkins contacted Martin and told him that defendant, whom sheknew to be a felon, was in possession of several firearms at the property they jointly owned.Several buildings were located on the property, including a two-story principal residence, abuilding described as a barn, a smaller garage and a shed. Atkins stated that defendant had rentedthe principal residence to a third party and resided in the barn. The search warrant authorized thesearch of "the entire barn building" located on the property. Defendant contends that the searchwarrant was invalid because he occupied only one of the two dwelling units located within thebarn building.
"Generally, a warrant to search a subunit of a multiple occupancy structure is void if it failsto describe the subunit to be searched and only describes the larger structure" (People v [*4]Henley, 135 AD2d 1136, 1136 [1987] [citations omitted], lvdenied 71 NY2d 897 [1988]; seePeople v Cook, 108 AD3d 1107, 1108 [2013], lv denied 21 NY3d 1073 [2013]).However, "if the police make a factual mistake and describe a place to be searched in broaderterms than appropriate, the validity of the warrant turns on the information available to themwhen they acted" (People v Otero, 177 AD2d 284, 285 [1991], lv denied 79NY2d 862 [1992]; see People vDiaz, 11 AD3d 476, 477 [2004], lv denied 3 NY3d 756 [2004]).
Martin completed an investigation prior to seeking the warrant. Although Martin noticed thatthere were two separate entrance doors to the barn, he had no other information suggesting thatthe building contained two dwelling units or that anyone other than defendant occupied thebuilding. Atkins, who represented that she had regular access to the property, accurately reportedthat the principal dwelling was rented to a third party, but did not report that there were twodwelling units in the barn or that there were tenants at the property other than those residing inthe principal residence. There were three active electricity accounts at the address—one indefendant's name, one in Atkins's name and one in the name of a third party, whom Martinreasonably concluded was the tenant of the principal residence. There was only one mailbox,which bore only defendant's name. In conducting surveillance over a three-day period, Martinsaw a gray pick-up truck fitting the description of one titled to defendant parked near the barnbuilding, but did not observe any persons in the vicinity of the barn. In light of the facts known toMartin when he obtained the warrant, we conclude that it was not rendered invalid by thesubsequent discovery that the barn building contained two dwelling units.
Defendant also sought to suppress evidence of the firearms seized from Moyer's vehiclewhen it was searched while it was on his property solely on the basis that police lacked theauthority to be upon his property because the search warrant was invalid. Defendant concededthat he otherwise lacked standing to challenge the search of Moyer's vehicle. Thus, in light of ourdetermination that County Court was correct in finding that the search warrant was valid, weconclude that there is no basis for suppressing the firearms seized upon a search of Moyer'svehicle.
Garry, J.P., Egan Jr., Devine and Aarons, JJ., concur. Ordered that the judgment is reversed,on the law, and matter remitted to the County Court of Madison County for a new trial.