Opinion
No. 2014KN079263.
09-29-2015
The PEOPLE of the State of New York v. Winston HALL, Defendant.
ADA Chelsea Toder, for the People. Henry P. DeChalus, Esq., for the Defense.
ADA Chelsea Toder, for the People.
Henry P. DeChalus, Esq., for the Defense.
JOANNE D. QUIÑONES, J.
On September 24, 2015, the defendant Winston Hall failed to appear for trial and a bench warrant was ordered. The matter was adjourned one day for the court to conduct a Parker hearing. For the reasons set forth below, the court finds that the defendant's non-appearance at trial was voluntary. However, after considering all appropriate factors set forth by the Court of Appeals in People v. Parker, 57 N.Y.2d 136, 454 N.Y.S.2d 967, 440 N.E.2d 1313 (1982), the court concludes that proceeding to trial in absentia is not warranted at this time.
Procedural History
The defendant, Winston Hall, was charged under Docket 2014KN079263 with Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree for an incident that allegedly occurred on October 20, 2014. Under a separate docket, Docket 2014KN082519, the defendant was charged with Obstructing Governmental Administration in the Second Degree, Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree and other VTL offenses for an incident that allegedly occurred on October 31, 2014. On April 1, 2015, the People's motion to consolidate the two dockets was granted without opposition and the matters were consolidated for trial under the earlier docket.
On April 29, 2015, the consolidated matter was sent to me in Trial Part 5(TP5) for hearing and trial. On that date the People moved to dismiss the count charging defendant with Obstructing Governmental Administration in the Second Degree, the sole class A misdemeanor with which defendant was charged. At the time the defendant was representing himself. The pre-trial suppression hearing commenced and the court adjourned the matter to the next day, April 30, 2015 at 9:30 AM, for continued hearing. On April 30, 2015, the defendant failed to appear at 9:30 AM. At 10:02 AM, the case was called into the calendar and a bench warrant was ordered for the defendant's arrest. At 10:43 AM, the defendant appeared, the warrant was vacated and the People requested bail in the amount of $3,000. The court released the defendant on his own recognizance and admonished him about being on time. The court then explained to the defendant the status of the case and advised defendant to consider having an attorney or a legal adviser appointed to him because it appeared to the court that the defendant did not understand the charges or the status of the proceedings. The defendant then cited non-existent and irrelevant law and demanded a jury trial even though the court explained that under the Criminal Procedure Law he is not entitled to one. The defendant also argued double jeopardy, claimed that this prosecution was a crime against the state, asked for a bond for the arresting officer and expressed a desire to plea for damages because "he ha[s] the vessel." The court denied defendant's application and advised the defendant to strongly consider the appointment of a legal adviser or attorney. After some back and forth on the record, the court indicated it was taking a recess to find an attorney to speak with the defendant. The defendant then made a rather lengthy record and a recess was taken. The parties were advised to be back in ten minutes. The court further advised the defendant that a warrant would be issued for his arrest if he was not back in ten minutes.
After the recess, the case was called in and defendant refused to enter the well and asked from the audience whether he was waiving his jurisdictional rights. After the defendant repeatedly refused to enter the well preventing the proceedings from going forward, the court issued a warrant for the defendant's arrest at 12:05 pm.Shortly before the lunch break at 1 pm, the defendant was returned involuntarily on the warrant by NYC police officers. The court assigned an 18B attorney to represent the defendant for the purposes of bail. The defendant refused to communicate with counsel and instead spoke on his own behalf. After hearing from the prosecution and the defendant, the court set bail and adjourned the matter to May 12, 2015 for 18B counsel or a legal adviser to be assigned and to set a trial date.
On May 12, 2015, the defendant, having made bail, appeared in court at 10:24 AM. Present for the call was an attorney from the 18B panel. Despite the defendant's desire to continue representing himself, I determined that the defendant was unable to defend himself adequately and to protect his legal rights in this criminal proceeding. I made a record detailing the basis for that determination and then appointed the attorney from the 18B panel to serve as defendant's attorney. On that date, I, on the record and in the presence of defense counsel, gave the defendant his Parker warnings. Specifically, I advised him of his right to be present at trial and I further advised him that should he deliberately fail to appear, the trial would continue in his absence (see Official Court Transcript [Tr.] of 5/12/2015, p 6, line 21–p 8, line 5).
After both sides consented to start the pre-trial hearing de novo, a combined Huntley/Dunaway/Ingle hearing was commenced anew. At the end of the day, the matter was adjourned to the next day, May 13, 2015 at 9:30 AM, for continued hearing. On May 13, 2015 the pre-trial hearing was concluded and the court rendered an oral decision denying defendant's motion to suppress the statements attributed to him. At defendant's request, the matter was adjourned to May 18, 2015 to set a trial date. On the adjourn date, the trial was set for May 26, 2015.
On May 26, 2015, the attorneys appeared in TP 5 in the morning. Because the court was engaged in other matters, the court called the attorneys up to the bench and advised them the case would be called right after the lunch recess. Defense counsel advised the court that he was in touch with his client and that he would return with his client at 2:15 pm. At 2:15 pm, I observed the defendant in the hallway outside of the courtroom. At approximately 2:45 PM, the defendant had still not entered the courtroom and I asked defense counsel where his client was. Defense counsel indicated that his client did not see his name on the court calendar posted outside the courtroom and left the courthouse. In response to the court's question as to whether counsel informed the defendant that the matter was on that day, defense counsel answered in the affirmative. The court issued a warrant for defendant's arrest at 3:34 PM.
On July 20, 2015, the defendant was arrested and arraigned on a new matter and was involuntarily returned on the outstanding warrant in this matter and on a Queens County case. Bail was set at $1 bond over $1 cash by the arraignment judge and the matter was adjourned to July 24, 2015. On the next date, another judge of this court heard a bail application from the People and bail was increased to $5000 bond over $5000 cash. The matter was then adjourned to August 11, 2015 for trial. The defendant made bail in the interim. On August 11, 2015, the People answered not ready for trial and the matter was adjourned to September 24, 2015 for trial.
On September 24, 2015, I was assigned to sit in the courtroom designated All Purpose Part 3(AP3). All cases pending in TP5 were being called in AP3. On that date, the court was notified by the court staff that the defendant was sitting in AP4, the courtroom next door to AP3. The defendant was advised by the court staff that his case would be called in AP3 and he then came into AP3 and sat in the audience. After handling the majority of the AP3 calendar, the defendant's case was called into the record at approximately 12:40 PM. The defendant made several applications, including a demand for a jury trial, a motion for dismissal because he claimed the matter had been transferred to Federal Court as he had filed papers with the marshals, and an application for reassignment of counsel as defendant wished to represent himself. The court denied the defendant's applications. Both sides answered ready for trial and the court then entertained the People's written Molineux application which was filed and served off calendar on or about May 20, 2015. After denying the People's Molineux application in its entirety, the court recessed for lunch until 2:30 pm. The court specifically said to the defendant, "I gave you your Parker warnings. If you do not appear, this case will go forward in your absence. Make sure you appear at 2:30 sharp otherwise you will not be able to be on the record as you would like to be, is that understood" (see Tr. of 9/24/2015, p 18, lines 12–17). The defendant responded, "Understood" (id. at line 18).
At approximately 2:37 PM that afternoon, the defendant returned to the courtroom. Shortly thereafter, defendant and defense counsel began speaking to one another inside the courtroom. Because AP3 was still in session, the court asked defense counsel to speak with his client in the hallway. At approximately 3 PM the AP3 calendar was finished and defendant's trial case was ready to be re-called. The defendant was not present in the courtroom and I asked the attorneys to approach the bench to inquire of the defendant's whereabouts. The assigned assistant represented that she observed the defendant get into an argument with defense counsel and that defendant then left the courthouse. She further stated that her colleague checked the floors and restrooms but he did not locate the defendant. Defense counsel indicated that he and his client had a disagreement because the defendant was dissatisfied with the court's rulings and that the defendant left the courthouse. I indicated that I was going to issue a warrant for the defendant's arrest and defense counsel requested an opportunity to reach his client.
At approximately 3:40 PM, the case was re-called into the record and the defendant failed to appear. Defense counsel explained on the record that his client had returned after lunch and that they had stepped into the hallway to speak where the defendant reiterated his desire to have the matter moved to Federal Court and commented that his Sixth Amendment right to proceed on his own were being violated. I issued a warrant for defendant's arrest and adjourned the matter to the next day, September 25, 2015, for a Parker hearing.
On September 25, 2015, the defendant was not present and a Parker hearing was held. After both sides rested, I heard oral arguments and adjourned the matter to September 29, 2015 for my decision on the Parker hearing.
The Parker Hearing—Findings of Fact
At the start of the Parker hearing defense counsel advised the court, both off the record in a bench conference and on the record, that he had spoken to the defendant just 20 minutes before and that the defendant was upset because he believed the court was violating his Sixth Amendment right by not allowing him to represent himself. He further explained that the defendant would return if he was allowed to represent himself.
At the hearing the People called one witness, Melissa Massa, a paralegal with the Kings County District Attorney's office. Ms. Massa testified credibly that on September 24, 2015 at approximately 4:19 pm and again on September 25, 2015 at approximately 9:14 am, she conducted a Parker search on the instant matter. She conducted the search using the defendant's name Winston Hall, his date of birth February 2, 1981, and his NYSID 08541004H, which she obtained from the defendant's arrest record. The defendant's arrest record was submitted into evidence without objection as People's Exhibit No.1.
Specifically, Ms. Massa testified that she spoke to defendant's local precinct, the 67th Precinct, on September 24 and September 25, 2015, and confirmed that the defendant Winston Hall, date of birth February 2, 1981, NYSID 08541004H, was not in custody at his local precinct on either of those dates. On both dates, she also confirmed, by checking online, that no one with defendant's name, date of birth and NYSID was in the custody of the New York City Department of Corrections (N.Y.CDOC), New York State Department of Corrections (N.Y.SDOC), or the Immigration Customs Enforcement (ICE). On September 25, 2015, Ms. Massa spoke with a police sergeant at Queens Central Booking who checked Central booking in all boroughs and confirmed that the defendant was not in Central Booking in any of the five boroughs. On September 25, 2015, she contacted numerous area hospitals, including 14 Brooklyn hospitals, 4 Manhattan hospitals, 3 Queens hospitals, and one hospital each in Staten Island and the Bronx, and ascertained that no one with defendant's name and date of birth was admitted into any of those hospitals or was in the emergency room of any of those hospitals. On September 25, 2015, Ms. Massa also spoke with an individual at the Kings County morgue who confirmed for her that no one with defendant's name and date of birth was at that morgue or at any of the county morgues in the five boroughs of NYC.
On cross-examination, Ms. Massa conceded that she was not aware of the defendant's alias, Sage El, and that she did not conduct a Parker search using the defendant's alias. Ms. Massa further admitted that she was not sure of how often or when the websites for the NYC DOC, NYS DOC, or ICE were last updated. Finally, she testified that she did not attempt to go out to the defendant's residence or to contact the defendant or any of his family members via phone.
The Parker Hearing—Conclusions of Law
The United States Constitution, the New York State Constitution and sections 260.20 and 340.50 of the New York Criminal Procedure Law give a defendant the right to be preset at a criminal trial. This right may however be waived (see Parker, 57 N.Y.2d 136, 454 N.Y.S.2d 967, 440 N.E.2d 1313 ) or forfeited (see Taylor v. US, 414 U.S. 17 [1973] ; People v. Sanchez, 65 N.Y.2d 436, 443 [1985] ). For waiver, there must be a knowing, voluntary and intelligent decision, which may be express or implied, whereas forfeiture occurs by operation of law, based on objective facts and circumstances, and without regard to defendant's state of mind (People v. Corley, 67 N.Y.2d 105, 110 [1986] ; Parker, 57 N.Y.2d at 140, 454 N.Y.S.2d 967, 440 N.E.2d 1313 ).
"In order to effect a voluntary, knowing and intelligent waiver, the defendant must, at a minimum, be informed in some manner of the nature of the right to be present at trial and the consequences of failing to appear for trial" (Parker, 57 N.Y.2d at 141, 454 N.Y.S.2d 967, 440 N.E.2d 1313 ), that is the defendant must be made aware that the trial will continue in his absence if he fails to appear. Under the forfeiture theory, Parker warnings need not be given as a defendant who fails to appear after his case has been referred for immediate trial or once the trial has begun shows a "defiance of the process of law" and said defendant will have forfeited his right to be present at trial (see Sanchez, 65 N.Y.2d 444; People v. Rodriguez, 174 A.D.2d 405, 571 N.Y.S.2d 12 [1st Dept 1991] ). Before proceeding in the defendant's absence under either theory, the court must make an inquiry and recite on the record the facts and reasons it relied upon in finding that defendant's absence was deliberate (People v. Brooks, 75 N.Y.2d 898, 899 [1990] ; People v. Amato, 172 A.D.2d 545, 545, 567 N.Y.S.2d 873 [2nd Dept 1991] ).
In determining whether defendant's absence is voluntary, a court may rely on the People's evidence that reasonable efforts were made to locate the defendant (People v. Franco, 191 A.D.2d 707, 595 N.Y.S.2d 794 [2nd Dept 1993] ; People v. Jones, 163 A.D.2d 203, 558 N.Y.S.2d 56 [1st Dept 1990] ). Other factors the court may consider in determining voluntariness include the defendant's history of being late or absent (see People v. Green, 216 A.D.2d 581, 629 N.Y.S.2d 53 [2nd Dept 1995] ); defendant's history of uncooperative and inappropriate behavior (see People v. Locencitt, 40 Misc.3d 1211[A] [sup Ct, Kings County 2013] ); and any assertions of defense counsel (People v. Redzeposki, 7 N.Y.3d 725 [2006] ; People v. Bailey, 172 A.D.2d 163, 567 N.Y.S.2d 701 [1st Dept 1991] [counsel asserted that defendant had picked up his employment check earlier on the same morning he failed to appear] ).
The Court of Appeals has emphasized that even where a defendant is found to be deliberately absent and to have thus waived his right to be present at trial, trial in absentia is not automatically authorized (Parker, 57 N.Y.2d at 142, 454 N.Y.S.2d 967, 440 N.E.2d 1313 ). Before proceeding in the defendant's absence, the court must consider "all appropriate factors, including the possibility that defendant could be located within a reasonable period of time, the difficulty of rescheduling trial and the chance that the evidence will be lost or witnesses will disappear" (id. ).
On May 12, 2015, I personally gave the defendant his Parker warnings. The defendant here is habitually late and has warranted on several occasions. This is not the first time that the defendant has "fleed from a courtroom in the midst of a trial-where judge,, witnesses and lawyers are present and ready to continue" (Taylor v. US, 414 U.S. at 20 ). On at least one other occasion the defendant has failed to appear inside the courtroom for an afternoon call despite his having returned to the courthouse after lunch. The defendant has a history of being uncooperative and frustrating the proceedings by constantly interrupting the court to challenge the court's jurisdiction and authority and to make arguments built upon the quasi-legal theories of "sovereign immunity or sovereign citizenship."
The evidence presented by the People at the hearing demonstrates that they made reasonable, albeit unsuccessful, efforts to locate the defendant by calling over 20 area hospitals, checking the morgues and Central Booking in every county, by checking on the websites of the NYCDOC, NYSDOC and ICE, and by checking defendant's local precinct (Franco, 191 A.D.2d at 708, 595 N.Y.S.2d 794 [People's unsuccessful efforts to locate defendant after calling 5 area hospitals, the county morgue, 2 correctional facilities, 2 of defendant's alleged employers and 7 telephone numbers associated with defendant's address found reasonable]; Rodriguez, 174 A.D.2d at 405, 571 N.Y.S.2d 12 [court and People made reasonable and unsuccessful efforts to determine defendant's whereabouts by checking at his home and city's morgues, hospitals and jails]; Bailey, 172 A.D.2d at 163, 567 N.Y.S.2d 701 [People's unsuccessful efforts to locate defendant by calling 7 Manhattan precincts, Central Booking offices in the city, 13 area hospitals and the morgue found reasonable]; Jones, 163 A.D.2d at 204, 558 N.Y.S.2d 56 [reasonable efforts found where unsuccessful attempts to locate defendant were made by calling numerous hospitals, morgues and central booking offices in city] ). Although the People concede that they did not search for defendant under his alias Sage El, here defense counsel's explanation for defendant's whereabouts make clear that defendant's absence is not due to hospitalization or incarceration or any involuntary reason. Defense counsel explained that on September 24, 2015 the defendant left the courthouse after a philosophical disagreement with defense counsel. When asked about defendant's whereabouts on September 25, 2015, the date of the Parker hearing, defense counsel explained that he spoke to his client over the phone twenty minutes prior to the hearing and that the defendant was not appearing because he was upset that he was not being allowed to represent himself.
Based on the evidence presented by the People at the hearing of their reasonable efforts to locate the defendant, defense counsel's explanations for his client's whereabouts and the defendant's history of being late, absent and uncooperative, the court finds that the defendant voluntarily absented himself from his trial.
Notwithstanding the court's finding that defendant's non-appearance is deliberate, the court concludes that proceeding to trial in absentia is not warranted at this time (cf. People v. Scott, 104 A.D.2d 667, 480 N.Y.S.2d 119 [2nd Dept 1984] [reversal required where record failed to demonstrate that trial court considered any of the appropriate factors before proceeding with trial in defendant's absence]; People v. June, 116 A.D.3d 1094, 983 N.Y.S.2d 348 [3rd Dept 2014] [same] ). Here, the court has issued a bench warrant for defendant's arrest. Additionally, the court notes that the defendant has a matter pending in Queens on which he is due to appear on October 16, 2015, which is in two and a half weeks. While the court is cognizant of the fact that this matter has been scheduled for trial numerous times and that the People have been ready to proceed on all but two occasions, the court notes that this is a bench trial, which unlike a jury trial, can be re-scheduled and accommodated more readily. The court also notes that based on the People's proposed witness list this trial does not involve any civilian witnesses so the chances of witnesses disappearing is diminished. Having considered "all appropriate factors" as set forth in People v. Parker, supra, the court finds there is a likelihood that defendant can be located within a reasonable amount of time. Accordingly, the court will not proceed to trial in absentia in this matter. The bench warrant ordered on September 24, 2015 for the defendant's arrest remains in effect.
The foregoing constitutes the decision and order of the court.