People v. Smith (Stacey)

People v Smith (2021 NY Slip Op 51071(U)) [*1] People v Smith (Stacey) 2021 NY Slip Op 51071(U) [73 Misc 3d 136(A)] Decided on November 10, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through November 16, 2021; it will not be published in the printed Official Reports. Decided on November 10, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : ELIZABETH H. EMERSON, J.P., TIMOTHY S. DRISCOLL, HELEN VOUTSINAS, JJ 2020-999 S CR The People of the State of New York, Respondent, against Stacey Smith, Appellant. Scott Lockwood, for appellant. Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent. Appeal from judgments of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (Debra Urbano-DiSalvo, J.H.O.), rendered November 16, 2020. The judgments convicted defendant, after a trial in absentia, of failing to stop at a stop sign and speeding, respectively, and imposed sentences. The appeal brings up for review an order of that court (Allen S. Mathers, J.H.O.) dated August 17, 2020 denying defendant's motion to dismiss the simplified traffic informations on statutory speedy trial grounds. ORDERED that the judgments of conviction are reversed, on the law, the fines, if paid, are remitted, and the matter is remitted to the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency, for a new trial. Defendant was charged in separate simplified traffic informations with failing to stop at a stop sign (Vehicle and Traffic Law § 1172 [a]) and speeding (Vehicle and Traffic Law § 1180 [d]), respectively. Defendant subsequently moved to dismiss the simplified traffic informations on statutory speedy trial grounds. By order dated August 17, 2020, the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (SCTPVA) denied the motion. On November 16, 2020, defendant failed to appear in court and, after a brief trial was conducted [*2]in both defendant's and his counsel's absence, the SCTPVA convicted defendant of the charges and imposed sentences. On appeal, defendant initially contends that the SCTPVA should have granted his motion to dismiss the simplified traffic informations on statutory speedy trial grounds. However, the 30-day time period of CPL 30.30 (1) (d) is not applicable here as the only charge in each accusatory instrument was a traffic infraction (see People v Lopez, ___ Misc 3d ___, 2021 NY Slip Op 51016[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]; People v Altman, 73 Misc 3d 127[A], 2021 NY Slip Op 50886[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]). Consequently, defendant's motion was properly denied. Relying, in part, on a November 13, 2020 memorandum from the Chief Administrative Judge for the Courts of the State of New York, pertaining to "Revised Pandemic Procedures in the Trial Courts," which instructed that, commencing on November 16, 2020, all future bench trials and hearings would be conducted virtually unless the respective Deputy Chief Administrative Judge permitted otherwise, defendant further contends that the court improperly conducted a trial in absentia. A defendant's right to be present in the courtroom during his or her trial is one of the most basic rights guaranteed by the Federal Constitution (US Const 6th Amend), the New York State Constitution (NY Const, art I, § 6), and by statute (CPL 260.20, 340.50; see People v Parker, 57 NY2d 136, 142 [1982]). Where a defendant fails to appear at trial and there is no basis to conclude that the defendant was aware that a trial could proceed in his or her absence, before proceeding, the court should make an inquiry to determine whether the absence was deliberate and recite on the record the facts and the reasons it relied upon in making that determination (see People v Redzeposki, 7 NY3d 725, 726 [2006]; People v Brooks, 75 NY2d 898, 899 [1990]; Parker, 57 NY2d at 141-142). In fact, even where "a defendant has waived the right to be present at trial by not appearing after being apprised of the right and the consequences of nonappearance, trial in absentia is not thereby automatically authorized" (Parker, 57 NY2d at 142). Rather, before proceeding in the defendant's absence, under these circumstances, 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 evidence will be lost or witnesses will disappear" (id.). Here, no inquiry was made, there was no effort to attempt to locate defendant, and the court failed to consider the difficulty of rescheduling the trial. Under the circumstances, it was error for the SCTPVA to proceed with defendant's trial in his absence, and, accordingly, the conviction must be reversed and a new trial ordered (see People v June, 116 AD3d 1094 [2014]; People v Sumner, 254 AD2d 537 [1998]; People v Lamb, 235 AD2d 829 [1997]; People v Smiley, 200 AD2d 777 [1994]; People v Scott, 104 AD2d 667 [1984]; People v Lobato, 63 Misc 3d 137[A], 2019 NY Slip Op 50527[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; [*3]People v Palmer, 63 Misc 3d 137[A], 2019 NY Slip Op 50526[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]). In view of the foregoing, we need not pass upon whether defendant was entitled to rely upon the November 13, 2020 memorandum from the Chief Administrative Judge for the Courts of the State of New York, since, even if defendant was, the remedy would be the same, to wit, a new trial. Accordingly, the judgments of conviction are reversed, and the matter is remitted to the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency, for a new trial. EMERSON, J.P., DRISCOLL and VOUTSINAS, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: November 10, 2021