Opinion
2017-1276CV
05-16-2018
The PEOPLE of the State of New York, Respondent v. Ravi BOLLU, Defendant/Appellant
Brooks T. Baker, District Attorney, by Amanda M. Chafee, Assistant District Attorney for the People/Respondent Zev Goldstein, PLLC for the Defendant/Appellant
Brooks T. Baker, District Attorney, by Amanda M. Chafee, Assistant District Attorney for the People/Respondent
Zev Goldstein, PLLC for the Defendant/Appellant
Philip J. Roche, J.
The above-referenced matter has come before the Court on defendant's Notice of Appeal dated October 10, 2017, appealing an order of the Hon. Ronald C. Snyder entered in the Cohocton Town Court on October 10, 2017. The defendant submitted an Affidavit of Errors dated October 10, 2017, and a Brief for the Appellant dated January 18, 2018. The Hon. Ronald C. Snyder submitted a Response to the Notice of Appeal and Affidavit of Errors dated December 8, 2017 and Assistant District Attorney, Amanda M. Chafee, submitted a Brief for Respondent received on May 4, 2018.
SUMMARY OF FACTS
On June 3, 2017, the defendant was ticketed for a violation of Vehicle and Traffic Law § 1180(d) in the Town of Cohocton. The attorney for the defendant sent a letter to the Court dated July 28, 2017, entering a plea of not guilty and enclosing a document entitled "Waiver & Authorization Pursuant to CPL § 340.50(2)" stating "[k]indly advise if unacceptable." There is nothing in the record to indicate that the Court took any action with respect to this waiver. The matter was subsequently scheduled for trial in the Cohocton Town Court on October 10, 2017. On the date of trial, the attorney for the defendant appeared but the defendant did not. The attorney for the defendant presented the Court with the "Waiver & Authorization" and, pursuant to CPL § 340.50(2), orally moved to waive the defendant's presence at trial. The People did not oppose the motion. The Court denied the motion finding that a trial in the defendant's absence "would not be a ‘fair’ trial not allowing the defense the opportunity to be heard or the one person having direct knowledge to have the opportunity to testify if so desired" (Response to the Notice of Appeal and Affidavit of Errors, paragraph 11). As a direct result of the Court's ruling, the defendant, through his attorney, entered a plea to a reduced charge rather than the court offered alternative of an immediate suspension of the defendant's license (presumably due to his non-appearance) and a re-scheduled trial date when the defendant would be required to appear. The Court accepted the plea, entered the conviction and assessed a fine and surcharge. This appeal challenging the denial of the defendant's motion to waive the defendant's presence at trial followed.
The issue presented on this appeal is whether the Court's denial of the defendant's motion pursuant to CPL § 340.50(2) requesting the waiver of the defendant's presence at trial was an abuse of discretion.
"[A] defendant must be personally present during the trial" ( CPL § 340.50(1) ) of a Uniform Traffic Ticket unless the Court, on motion of the defendant pursuant to Criminal Procedure Law § 340.50(2), dispenses with that requirement.
CPL § 340.50(2) provides as follow:
"On motion of a defendant represented by counsel, the court may, in the absence of an objection by the people, issue an order dispensing with the requirement that the defendant be personally present at trial. Such an order may be made only upon the filing of a written and subscribed statement by the defendant declaring that he waives his right to be personally present at the trial and authorizing his attorney to conduct his defense."
Not surprisingly, there is little appellate activity interpreting this statute as it applies only to the prosecutions of violations and misdemeanors in local criminal courts. However, an analogous statute, CPL § 260.20, applies to the presence of the defendant during felony proceedings in superior courts and provides as follows:
"A defendant must be personally present during the trial of an indictment" ( CPL § 260.20 ).
It is noted that this statute is compulsory because it uses the word "must" and does not include a process to waive the defendant's presence at trial. Nevertheless, much of the case law pertaining to this statute and the defendant's presence is instructive to this Court's analysis of the interpretation of CPL § 340.50(2).
It is well settled that the purpose of statutes compelling the defendant's presence at trial "is for the benefit of the defendant (emphasis added) (not the People)" ( People v. Epps , 37 N.Y.2d 343, 350, 372 N.Y.S.2d 606, 334 N.E.2d 566 [1975] citing Johnson v. Zerbst , 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 ; Diaz v. United States , 223 U.S. 442, 455, 32 S.Ct. 250, 56 L.Ed. 500 ; People v. Rossborough , 27 N.Y.3d 485, 489, 34 N.Y.S.3d 399, 54 N.E.3d 71 [2016] ; People v. Chambliss , 106 Misc.2d 342, 344-345, 431 N.Y.S.2d 771 [Westchester County Ct 1980] ). Accordingly, "the right to be present is clearly waivable under both the Federal and State Constitutions" ( People v. Epps , Id. at 349, 372 N.Y.S.2d 606, 334 N.E.2d 566 [1975] ) and "a defendant may waive his right to be present by consent or misconduct" ( Snyder v. Massachusetts , 291 U.S. 97, 106, 54 S.Ct. 330, 78 L.Ed. 674 ; People v. Epps , Id. at 349, 372 N.Y.S.2d 606, 334 N.E.2d 566 ; People v. Parker , 57 N.Y.2d 136, 454 N.Y.S.2d 967, 440 N.E.2d 1313 [1982] ).
The Court of Appeals recently held that "if a defendant knowingly, voluntarily and intelligently informs the court that he desires to waive this fundamental right (to be present at sentencing) he is entitled to do so" ( People v. Rossborough , 27 N.Y.3d 485, 488-489, 34 N.Y.S.3d 399, 54 N.E.3d 71 [2016].)
The Court will now determine if the waiver of that right was properly asserted. The record contains a document entitled a "Waiver & Authorization Pursuant to CPL § 340.50(2)" and recites, in part, as follows:
"2. I understand that I have the right to be present at every Court Appearance regarding this matter. I expressly waive that right and grant to the Law Office of Zev Goldstein PLLC or its designate the full authority and discretion to handle the matter without me being present.
3. The foregoing authority includes ...proceeding to trial...".
The document purports to contain the signature of the defendant and is dated July 24, 2017.
Although filing a formal Notice of Motion with an Affirmation prior to the trial date may be a better practice, an oral motion on the date of trial is acceptable.
The Court finds that this document satisfies the requirements of CPL § 340.50(2) and constitutes a valid waiver of the defendant's right to be present at trial. The Court also finds that the People did not oppose the motion and that the motion was timely presented.
The People argue that the use of "may" in CPL § 340.50(2) vests in the Court the discretion to accept or reject the defendant's waiver of his right to be present at trial. This Court agrees with that assessment. "Trial Courts have broad discretion to control and manage their courtrooms and court proceedings" People v. Williams , 92 N.Y.2d 993, 995, 684 N.Y.S.2d 163, 706 N.E.2d 1187 [1998] ; People v. Vargas, 88 N.Y.2d 363, 645 N.Y.S.2d 759, 668 N.E.2d 879 [1996] ). However, such discretion is not absolute.
A stated above, statutes requiring a defendant to appear at trial are for the benefit of that defendant and therefore can be waived by that defendant. In some circumstances, for an appropriate reason, a court may nevertheless exercise its discretion and deny the defendant's motion not to appear at trial. In this instance, the Court denied the motion as it determined that, unless the defendant was present, the defendant would not receive a "fair trial". The court's thoughtful protection of the defendant's rights, in opposition to the defendant's express waiver and the position of defendant's counsel, was misplaced. It is the defendant's choice, not the Court's, to assert or waive these rights. In the absence of any compelling reason that would override the defendant's knowing, intelligent and voluntary waiver of his right to be present at trial, the trial court improvidently denied the defendant's motion to exercise his right to waive his presence at trial ( People v. Williams , 92 N.Y.2d 993, 995, 684 N.Y.S.2d 163, 706 N.E.2d 1187 [1998] ).
The defendant's plea was entered following this erroneous ruling on the defendant's motion and therefore the defendant's plea, conviction and sentence must be vacated. Therefore, it is hereby:
ORDERED that the decision of the Town Justice denying the defendant's motion to waive his appearance at trial in hereby vacated; and it is further
ORDERED that the defendant's plea, conviction and sentence entered on October 10, 2017 is hereby vacated; and it is further
ORDERED that this matter is returned to the Cohocton Town Court for further proceedings consistent with this Decision and Order.