People v. El Hor

197 A.D.3d 1118

150 N.Y.S.3d 619 (Mem)

The PEOPLE, etc., respondent,

v.Abdelhak EL HOR, appellant.

2018-08546

Ind. No. 2051/14

Supreme Court, Appellate Division, Second Department, New York.

Argued—June 17, 2021

September 1, 2021

Patricia Pazner, New York, N.Y. (Jenin Younes and Cynthia Colt of counsel), for appellant.

Georgia M. Pestana, Corporation Counsel, New York, N.Y. (Ingrid R. Gustafson and Lorenzo Di Silvio of counsel), for respondent.

WILLIAM F. MASTRO, J.P., COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

Appeal by the defendant from an amended judgment of the Supreme Court, Queens County (Douglas Wong, J.), rendered July 2, 2018, revoking the probation component of a split sentence of incarceration and probation previously imposed by the same court (Barry Kron, J.), upon a finding that he violated conditions thereof, after a hearing, and imposing a sentence of imprisonment followed by a period of postrelease supervision upon his previous conviction of assault in the second degree.

ORDERED that the amended judgment is affirmed.

The defendant pleaded guilty to assault in the second degree in return for a split sentence of incarceration and probation (see Penal Law § 60.01[2][d] ). After completing the term of incarceration, the defendant allegedly violated conditions of his probation. The Supreme Court conducted a hearing and found that the defendant had violated several conditions of probation. The court revoked the probation component of the split sentence and imposed a term of imprisonment followed by a period of postrelease supervision. The defendant appeals.

The defendant contends that the Supreme Court erred in removing him from the courtroom during the People's case during the violation of probation hearing. A criminal defendant has the constitutional and statutory right to be present at all material stages of the criminal proceeding (see CPL 260.20 ; Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 ; People v. Dokes, 79 N.Y.2d 656, 659, 584 N.Y.S.2d 761, 595 N.E.2d 836 ). However, this right may be waived (see People v. Parker, 57 N.Y.2d 136, 139, 454 N.Y.S.2d 967, 440 N.E.2d 1313 ). " ‘[A] waiver of the right to be present at a criminal trial may be inferred from certain conduct engaged in by the defendant’ in open court" ( People v. Clark, 189 A.D.3d 1453, 1456, 136 N.Y.S.3d 46, quoting People v. Parker, 57 N.Y.2d at 139, 454 N.Y.S.2d 967, 440 N.E.2d 1313 ). A defendant who engages in disruptive behavior may be held to have, in effect, waived his or her right to be present (see People v. Parker, 57 N.Y.2d at 140, 454 N.Y.S.2d 967, 440 N.E.2d 1313 ; People v. Johnson, 37 N.Y.2d 778, 778, 375 N.Y.S.2d 97, 337 N.E.2d 605 ). The defendant may be removed from the courtroom if, after being warned by the trial court, the disruptive conduct continues (see People v. Antoine, 189 A.D.3d 1445, 1446, 137 N.Y.S.3d 72 ; People v. Burton, 138 A.D.3d 882, 883, 30 N.Y.S.3d 182 ).

Here, the defendant was removed from the courtroom only after the Supreme Court issued repeated warnings, which were ignored, as the defendant's disruptive behavior continued (see People v. Lundquist, 180 A.D.3d 806, 807, 119 N.Y.S.3d 496 ; People v. Baxter, 102 A.D.3d 805, 805, 961 N.Y.S.2d 194 ; People v. Parker, 92 A.D.3d 807, 807, 938 N.Y.S.2d 444 ).

Further, the court afforded the defendant the opportunity to return to the courtroom to testify (see People v. Lundquist, 180 A.D.3d at 808, 119 N.Y.S.3d 496 ). Accordingly, the court did not improvidently exercise its discretion in removing the defendant from the courtroom during the hearing when he failed to heed the court's warnings.

Contrary to the defendant's contention, the Supreme Court did not improvidently exercise its discretion in denying his request for new assigned counsel. The defendant failed to set forth "specific factual allegations of ‘serious complaints about counsel,’ " so as to trigger the court's duty to make a minimal inquiry into his request for new assigned counsel ( People v. Porto, 16 N.Y.3d 93, 100, 917 N.Y.S.2d 74, 942 N.E.2d 283, quoting People v. Medina, 44 N.Y.2d 199, 207, 404 N.Y.S.2d 588, 375 N.E.2d 768 ; see People v. Nelson, 189 A.D.3d 1080, 1082, 133 N.Y.S.3d 872 ; People v. Hayes, 179 A.D.3d 835, 835, 113 N.Y.S.3d 906 ).

The defendant's contention that the sentence imposed constituted cruel and unusual punishment is without merit (see U.S. Const 8th Amend; NY Const, art I, § 5 ; People v. Joseph, 187 A.D.3d 1050, 131 N.Y.S.3d 267 ; People v. Chacko, 119 A.D.3d 955, 956, 989 N.Y.S.2d 890 ). Moreover, the sentence imposed was not excessive (see People...