People v. Glatman (David)

People v Glatman (2022 NY Slip Op 50444(U)) [*1] People v Glatman (David) 2022 NY Slip Op 50444(U) [75 Misc 3d 131(A)] Decided on May 23, 2022 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on May 23, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : TIMOTHY S. DRISCOLL, J.P., HELEN VOUTSINAS, BARRY E. WARHIT, JJ 2021-376 S CR The People of the State of New York, Respondent, against David Glatman, Appellant. Scott Lockwood, for appellant. Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for respondent. Appeal from a judgment of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (Debra Urbano-Disalvo, J.H.O.), rendered May 13, 2021. The judgment convicted defendant, upon his plea of guilty, of speeding, and imposed sentence. ORDERED that the judgment of conviction is affirmed. Defendant was charged in a simplified traffic information with speeding (Vehicle and Traffic Law § 1180 [b]), for allegedly driving at a speed of 104 miles per hour (mph) in a 55 mph zone. On June 2, 2020, upon the People's application pursuant to Vehicle and Traffic Law § 510 (3) (a), the court (Kenneth Diamond, J.H.O.) suspended defendant's driver's license. On May 13, 2021, when the matter was about to proceed to trial, defense counsel represented to the court that defendant was out of state, but that defendant had executed a waiver of his right to be personally present at trial, which waiver was presented to the court. The prosecutor objected, stating that defendant's presence was required due to the severity of the allegations. In view of the objection, the court indicated that the trial would not proceed in defendant's absence, whereupon defense counsel entered a plea of guilty to the charge on behalf of defendant, and sentence was imposed. The pretrial suspension of defendant's driver's license, which can be suspended without notice pending prosecution (see Vehicle and Traffic Law § 510 [3-a]), was an administrative act which is not reviewable on a direct appeal (see CPL 450.10, 450.15; People v Flierl, 73 Misc 3d 136[A], 2021 NY Slip Op 51066[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]; People v Pocrass, 57 Misc 3d 153[A], 2017 NY Slip Op 51596[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]), but rather is reviewable only by the Supreme Court in an article 78 proceeding (see Vehicle and Traffic Law § 510 [7]; Flierl, 2021 NY Slip Op 51066[U]; Pocrass, 2017 NY Slip Op 51596[U]). Defendant contends that the court's refusal to accept his waiver of his right to be [*2]personally present at trial was erroneous as a matter of law, since a court may only reject such a waiver when it does not comport with statutory requirements or when there is insufficient proof that the waiver was knowingly, voluntarily and intelligently made. The People respond that this contention was waived by defendant's guilty plea and, therefore, the issue is not subject to review by this court. While a defendant has a constitutional and statutory right to be present at trial (see generally US Const, 6th Amend; NY Const, art I, § 6; CPL 340.50), he or she does not have a constitutional right not to be present at trial. Consequently, the People are correct that defendant's contention pertaining to the court's refusal to accept his waiver of his right to be present at trial was forfeited by his guilty plea (see generally People v Guerrero, 28 NY3d 110, 115-116 [2016]; People v Hansen, 95 NY2d 227, 230 [2000]). In any event, CPL 340.50 (2) specifically provides that "[o]n motion of a defendant represented by counsel, the court may, in the absence of an objection by the people, issue an order dispensing with the requirement that the defendant be personally present at trial" (emphasis added). Consequently, despite defendant's contention to the contrary, the court was not required to honor defendant's waiver, as the People are permitted to object to the waiver. Defendant's remaining contentions are without merit (see Matter of Dolce v Nassau County Traffic and Parking Violations Agency, 7 NY3d 492 [2006]; People v Lopez, 73 Misc 3d 133[A], 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]; People v Cataldo, 57 Misc 3d 153[A], 2017 NY Slip Op 51597[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; People v Stoliarov, 21 Misc 3d 135[A], 2008 NY Slip Op 52209[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2008]). Accordingly, the judgment of conviction is affirmed. DRISCOLL, J.P., VOUTSINAS and WARHIT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: May 23, 2022