Opinion
07-17-2024
The PEOPLE, etc., respondent, v. Theodore JOHNSON, appellant.
Patricia Pazner, New York, NY (Marissa Reap and Chelsey Amelkin of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Terrence P. Heller of counsel), for respondent.
Patricia Pazner, New York, NY (Marissa Reap and Chelsey Amelkin of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Terrence P. Heller of counsel), for respondent.
COLLEEN D. DUFFY, J.P., FRANCESCA E. CONNOLLY, PAUL WOOTEN, LOURDES M. VENTURA, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dena E. Douglas, J.), rendered July 1, 2019, convicting him of burglary in the second degree, petit larceny, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
[1–3] Contrary to the defendant’s contention, the Supreme Court providently exercised its discretion in proceeding with the trial in the defendant’s absence. "A defendant’s right to be present at a criminal trial is encompassed within the confrontation clauses of the State and Federal Constitutions" (People v. Parker, 57 N.Y.2d 136, 139, 454 N.Y.S.2d 967, 440 N.E.2d 1313; see People v. George, 219 A.D.3d 502, 502, 192 N.Y.S.3d 258). "However, a defendant may ‘forfeit that right by deliberately absenting himself [or herself] from the proceedings’ " (People v. George, 219 A.D.3d at 502, 192 N.Y.S.3d 258, quoting People v. Pierotti, 208 A.D.3d 1254, 1254, 174 N.Y.S.3d 754 [internal quotation marks omitted]; see People v. Sanchez, 65 N.Y.2d 436, 443-444, 492 N.Y.S.2d 577, 482 N.E.2d 56). "[B]efore proceeding in the defendant’s absence, the court has an obligation to inquire into the surrounding circumstances to determine if the defendant’s absence is deliberate and to recite on the record the reasons for its finding" (People v. Ramos, 179 A.D.3d 842, 843, 117 N.Y.S.3d 96 [internal quotation marks omitted]; see People v. George, 219 A.D.3d at 502, 192 N.Y.S.3d 258).
[4] Here, the record supports the Supreme Court’s determination, made after a hearing, that the defendant’s absence was deliberate and that his conduct "unambiguously [indicated] a defiance of the process of law" sufficient to effect a forfeiture of his right to be present (People v. Sanchez, 65 N.Y.2d at 444, 492 N.Y.S.2d 577, 482 N.E.2d 56; see People v. George, 219 A.D.3d at 502, 192 N.Y.S.3d 258). The record reflects that on November 26, 2018, after the court informed the parties that it would proceed with jury selection, the defendant absconded during a brief recess, that the defendant did not appear throughout the duration of a hearing pursuant to (People v. Parker, 57 N.Y.2d 136, 454 N.Y.S.2d 967, 440 N.E.2d 1313), which concluded on November 29, 2018, and that efforts to locate the defendant were fruitless. Moreover, the record shows that the court satisfied its obligation to consider "all appropriate factors" before proceeding with the trial in absentia (People v. Parker, 57 N.Y.2d at 142, 454 N.Y.S.2d 967, 440 N.E.2d 1313; see People v. Baynes, 162 A.D.3d 897, 898, 79 N.Y.S.3d 86 ). Thus, the court providently exercised its discretion in determining that the defendant forfeited his right to be present and in proceeding with the trial in his absence.
[5–7] The defendant’s contention that he was deprived of a fair trial by Certain remarks made by the prosecutor during summation is largely unpreserved for appellate review, as, with respect to the majority of the remarks at issue, defense counsel either failed to object, raised only generalized objections, or failed to request additional relief when the Supreme Court sustained his objections (see CPL 470.05[2]; People v. Flowers, 213 A.D.3d 692, 693, 182 N.Y.S.3d 237; People v. Munnerlyn, 193 A.D.3d 981, 982, 142 N.Y.S.3d 837). In any event, the remarks at issue either were fair comment on the evidence and the reasonable inferences to be drawn therefrom, fair response to arguments made by defense counsel in summation, or otherwise do not warrant reversal (see People v. Broderick 199 A.D.3d 696, 697, 153 N.Y.S.3d 899; People v. Burns, 183 A.D.3d 835, 836, 122 N.Y.S.3d 540). Contrary to the defendant’s contention, the curative instructions provided by the court were sufficient to mitigate any potential prejudice caused by the prosecutor’s statement during summation that the defendant and another individual arrested with the defendant "do burglaries together" (see People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370; People v. Pooler, 226 A.D.3d 705, 209 N.Y.S.3d 64).
The defendant’s remaining contentions are unpreserved for appellate review and, in any event, without merit.
DUFFY, J.P., CONNOLLY, WOOTEN and VENTURA, JJ., concur.