Opinion
14332 Ind. No. 627/17 Case No. 2018-5346
10-12-2021
The PEOPLE of the State of New York, Respondent, v. Edwin HERNANDEZ, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Alma D. Gonzalez of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sylvia Wertheimer of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Alma D. Gonzalez of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sylvia Wertheimer of counsel), for respondent.
Renwick, J.P., Kern, Oing, Mendez, Rodriguez, JJ.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered July 30, 2018, convicting defendant, after a jury trial, of grand larceny in the fourth degree, obstructing governmental administration in the second degree and resisting arrest, and sentencing him to an aggregate term of 1? to 4 years, unanimously affirmed.
The record reflects that the court provided defendant an adequate opportunity to state his reasons for his request for substitution of counsel, and then providently exercised its discretion in denying defendant's request for reassignment of counsel (see People v. Porto, 16 N.Y.3d 93, 100, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010] ; People v. Rahman, 129 A.D.3d 553, 13 N.Y.S.3d 14 [1st Dept. 2015], lv denied 26 N.Y.3d 933, 17 N.Y.S.3d 96, 38 N.E.3d 842 [1st Dept. 2015] ). To the extent defendant claims that counsel himself admitted to a breakdown in trust and communication, any such breakdown was the result of defendant's "unjustified hostility" toward his attorney, which does not require reassignment ( People v. Hobbs, 186 A.D.3d 1167, 1168, 130 N.Y.S.3d 458 [1st Dept. 2020], lv denied 36 N.Y.3d 1051, 140 N.Y.S.3d 881, 164 N.E.3d 968 [2021] ).
Contrary to defendant's allegations, he was removed from the courtroom only after Supreme Court issued repeated warnings, which were ignored, as defendant's disruptive behavior continued. Further, the court afforded defendant the opportunity to return to the courtroom the next court date to correct his behavior (see People v. Parker, 57 N.Y.2d 136, 141, 454 N.Y.S.2d 967, 440 N.E.2d 1313 [1982] ). Accordingly, the court did not improvidently exercise its discretion in removing defendant from the courtroom during the first day of trial when he failed to heed the court's warnings (see People v. Johnson, 37 N.Y.2d 778, 375 N.Y.S.2d 97, 337 N.E.2d 605 [1975] ; People v. Byrnes, 33 N.Y.2d 343, 349–350, 352 N.Y.S.2d 913, 308 N.E.2d 435 [1974] ).
The waiver analysis does not apply to the third day of trial, because defendant was not warned of the consequences of his failure to appear (see Parker, 57 N.Y.2d at 141, 454 N.Y.S.2d 967, 440 N.E.2d 1313 ). However, he forfeited his right to be present, because his failure to appear was for the purpose of frustrating the trial (see Sanchez, 65 N.Y.2d at 443–444, 492 N.Y.S.2d 577, 482 N.E.2d 56 ).
The court did not violate defendant's rights under People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 (1991) by failing to place on the record discussions regarding a jury note that unambiguously requested the medical reports of the arresting officer. The parties had agreed in advance to send any trial exhibits in the event of a request, and the jury note required only the ministerial act of sending the exhibit into the jury room ( People v. Snipes, 178 A.D.3d 405, 406, 115 N.Y.S.3d 238 [1st Dept. 2019], lv denied 34 N.Y.3d 1163, 120 N.Y.S.3d 249, 142 N.E.3d 1151 [2020] ; see also People v. Damiano, 87 N.Y.2d 477, 487, 640 N.Y.S.2d 451, 663 N.E.2d 607 [1996] ). Nor were these rights violated with regard to a jury note requesting the "Threat, Resistance or Injury Report," because the request would have only necessitated the ministerial action of informing the jury that the report had not been admitted into evidence (see People v. Ziegler, 78 A.D.3d 545, 911 N.Y.S.2d 331 [1st Dept. 2010] ; compare People v. Mendez, 26 N.Y.3d 1004, 1005, 19 N.Y.S.3d 821, 41 N.E.3d 785 [2015] ).
Defendant concedes that his excessive sentence claim is moot because he has completed his entire sentence.
We have considered defendant's remaining contentions and find them unavailing.