People v. Redzeposke , 801 N.Y.S.2d 267 ( 2005 )


Menu:
  • Judgment, Supreme Court, Bronx County (Caesar Cirigliano, J.), rendered February 24, 2004, convicting defendant, after a jury trial, of grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, and sentencing him, as a second felony offender, to concurrent terms of IV2 to 3 years and 1 year, reversed, on the law, and the matter remanded for a new trial.

    It is uncontested that defendant was not present for the verdict. Although the court had observed defendant in the hall of the courthouse prior to the verdict, defendant’s counsel maintained that defendant suffered from diabetes and had taken ill. The court conducted no further inquiry as to the circumstances of defendant’s absence. This was error.

    CPL 310.40 (1) provides, in part, that, “[t]he verdict must be rendered and announced ... in the presence of . . . the defendant . . . .” The law requires that the court make an inquiry and recite, “on the record the facts and reasons it relied upon in determining that defendant’s absence was deliberate” before proceeding in the defendant’s absence (People v Brooks, 75 NY2d *782898, 899 [1990], mot to amend remittitur granted 76 NY2d 746 [1990]; People v Morales, 80 NY2d 450, 455 [1992]).

    The dissent maintains that we are imposing a requirement of a “full-blown investigation to determine the truth of the [defendant’s] explanation” for his absence which will bring trials to a halt. This distorts both the facts of this case and the holding of Brooks. The simple facts of this case are that the court rejected defendant’s explanation that he felt ill and needed to go to the hospital merely because the court observed defendant in the courthouse hall prior to the verdict. The court’s fleeting observations do not constitute a proper inquiry into defendant’s absence from the proceedings. Similarly, it is clear from the colloquy relied on by the dissent that the court rejected defendant’s explanation of illness simply because the court saw the defendant in the hall and that he “looked fine.” This leads the dissent to conclude that the court “caught defendant in a material falsehood.” Alchemy of this sort cannot serve as a substitute for a proper inquiry into defendant’s absence. It is a rare case where the sum total of the evidence supporting proceeding in a defendant’s absence consists of the court’s momentary observations of the defendant. Thus, it is unlikely that the delay attendant to a Brooks inquiry will unduly delay the machinery of justice.

    Absent a record of such inquiry, defendant’s conviction must be reversed. Concur—Tom, J.P., Mazzarelli and Catterson, JJ.

Document Info

Citation Numbers: 21 A.D.3d 781, 801 N.Y.S.2d 267

Judges: Andrias, Friedman

Filed Date: 9/15/2005

Precedential Status: Precedential

Modified Date: 1/12/2022