DECISION AND ORDER On December 13, 2019, after a jury trial, defendant was found guilty of Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree. These charges were based on the brutal, execution-style murder of Lamont Smith. The evidence at trial was overwhelming. Though largely circumstantial, the inculpatory evidence included the testimony of twenty witnesses as well as incriminating fingerprint, DNA, ballistics, video surveillance and telephone record evidence. On January 6, 2020, after hearing poignant victim impact statements, including statements from the decedent’s mother, wife, and daughter, this Court sentenced defendant to an indeterminate term of imprisonment of 25 years to life on the murder charge and a concurrent determinate term of imprisonment of 10 years, with 5 years post-release supervision on the gun charge. On the day of sentencing, defendant filed the instant motion, pursuant to CPL 330.30(1), to set aside the verdict. Defendant claims that the Court violated his right to be present at trial by continuing the trial in defendant’s absence on two separate occasions, once on Wednesday, December 11, 2019, during defense counsel’s summation, and once, after deliberations had commenced, on Friday, December 13, 2019, a day of alleged religious observance for defendant who claimed to be of the Muslim faith.1 Because the People only had received a copy of defendant’s motion on the date of sentencing, the Court heard oral arguments on the motion, but held its decision in abeyance in order to give the People an opportunity to respond in writing. Having now received the People’s written response, having reviewed the transcripts of the trial proceedings and the relevant caselaw, for the following reasons, defendant’s motion is denied. By way of backdrop, defendant was extraordinarily disorderly and disruptive throughout the five-year history of this case, and particularly, during the course of the five-week-long trial before this Court. Defendant is a so-called Sovereign Citizen and made arguments during each court appearance consistent with the ideology of Sovereign Citizens. Defendant repeatedly maintained that neither the Laws of New York State nor the rules of the Court applied to him. In this vein, he regularly spoke out of turn and disobeyed the directives of the Court. Moreover, my colleagues who presided at the many court appearances prior to the case being assigned to this Court for trial, relieved four able and experienced trial lawyers who requested to be relieved due to defendant’s lack of cooperation with them.2 Finally, prior to being found fit to proceed to trial on November 5, 2018, defendant twice had been found to be unfit to proceed on the instant charges because he had behaved in a disruptive and bizarre manner and had been uncooperative with defense counsel.3 Notwithstanding defendant’s obstreperous behavior when he appeared before the Court, during the course of the trial, defendant was generally well-behaved whenever the jury was present in the courtroom. However, on two occasions, on Wednesday, December 11, 2019 and on Friday, December 13, 2019, as the trial was nearing its conclusion, defendant refused to be brought to the courtroom and the Court proceeded in his absence.4 A brief recitation of events will help explain why the Court proceeded in defendant’s absence on these two occasions when defendant refused to come to court. On December 10, 2019, during the Court’s morning session, the People concluded its presentation of its direct case and rested, and defendant’s mother and brother testified on behalf of defendant. After the testimony of defendant’s witnesses, the Court granted counsel an adjournment until after the luncheon recess so that he could speak to defendant during the recess about whether he would testify. As the court officers were escorting defendant from the courtroom in order to return defendant to the holding pens situated in the basement of the courthouse, defendant disobeyed a directive of the court officers and had to be restrained by the court officers. Because defendant resisted being restrained, force was necessitated and defendant’s head came into contact with the defense table. Defendant sustained a laceration to his forehead seemingly caused by his eyeglasses coming into contact with the table. Because the laceration required medical attention, the trial was adjourned to the following day, Wednesday, December 11, 2019. On December 11, 2019, defendant was transported by the Department of Correction (DOC) to the courthouse at 10:00 a.m., when the trial was scheduled to commence. However, defendant refused to be brought up from the holding pens to the courtroom unless he was escorted to the courtroom by court officers other than the officers who were involved in the previous day’s incident. In order to placate defendant, the Court spoke with the commanding officer of the court officers, who agreed to personally go down to the holding pens with the court officers to escort defendant to the courtroom. Defendant still refused to be brought to the courtroom and threatened “to fuck everybody up” when he was uncuffed. The Court then adjourned the case to 2:30 p.m. in the hope that defense counsel, who was on notice that the Court would proceed in defendant’s absence, could persuade defendant to return to the courtroom. At 2:30 p.m., one of the court officers who went to retrieve defendant reported that defendant again had refused to return to court. Counsel then placed on the record that during the luncheon recess he had discussed with defendant whether to testify and defendant indicated that he did not wish to testify. (Trial transcript: 1093, 1104, Sentencing transcript: 7). The Court found that defendant’s refusal to be transported to the courtroom constituted a forfeiture of his right to be present and then instructed the jury (who had arrived at court at 10:00 a.m.) that defendant has a right not to be present and that they should draw no adverse inference from defendant’s absence from the courtroom. Defense counsel proceeded to give his summation, which ended at approximately 4:30pm and the trial was recessed to the following day. On Thursday, December 12, 2019, defendant returned to both the courthouse and courtroom and was present when the prosecutor gave his summation and the Court instructed the jury on the law. Just prior to the commencement of deliberations that morning, the Court placed defendant on notice that if deliberations continued on the following day, which was a Friday, notwithstanding defendant’s professed desire not to come to court on Fridays so that he could attend religious services, deliberations would continue in his absence if he elected not to come to court.5 The Court added that it would attempt to make arrangements in the courthouse if defendant wished to pray on Friday. The jurors began deliberations and the Court recessed for lunch. After the luncheon recess, jury deliberations resumed and the jurors sent the Court a number of notes requesting exhibits and readback of testimony. Prior to adjourning for the day, out of the presence of the jury, the Court again made clear its intention of continuing deliberations the following day even in defendant’s absence and again informed defendant that it would attempt to make arrangements with the DOC for defendant to be able to pray in the courthouse during the luncheon recess. Initially, defendant voiced an objection to having to come to court on a day of religious observance and indicated that he did not wish to be produced on Friday. However, after the Court declared deliberations to be in recess and the jury had been given instructions and sent home for the evening and told to return the following morning at 10:00am, defendant indicated he was willing to come to court in the afternoon on Friday. The Court then had court personnel change the notation on the card used by the DOC to indicate that defendant should be produced to the courthouse by the DOC the following day. The following day, Friday, December 13, 2019, the jury was present in the courtroom at 10:00 a.m. prepared to resume deliberations. However, defendant was not present as he had refused to be transported from Rikers Island to the courthouse. The Court was informed that defendant’s refusal was due to religious observance. The jury resumed deliberations, and, after deliberating for approximately two hours, the jury reached its verdict. Conclusions of Law A defendant’s right to be present at a criminal trial is encompassed within the Confrontation Clauses of the State and Federal Constitutions. See People v. Parker, 57 NY2d 136 (1982). However, a defendant may forfeit his right to be present where his conduct unambiguously indicates a defiance of the process of law such as when he deliberately absents himself from the proceedings or when his actions are so disorderly or disruptive that the trial cannot be carried on with him in the courtroom. See CPL 260.20; People v. Sanchez, 65 NY2d 436, 444 (1985); People v. Byrnes, 33 NY2d 343, 349 (1974). Here, the objective facts and circumstances established defendant’s forfeiture of his right to be present on December 11, 2019 when counsel delivered his summation. By refusing to obey the lawful directives of the court officers and by resisting being restrained, defendant precipitated the use of force that resulted in the injury he sustained on December 10, 2019 during the in-court scuffle with the officers. To be sure, had it been the injury that formed the basis of defendant’s refusal to be present on December 11, 2019, the Court would not have proceeded in defendant’s absence. However, the record is clear that it was not the injury that formed the basis of defendant’s refusal to attend his trial as he was actually present in the courthouse on that day. Rather, it was defendant’s displeasure with the court officers staffing the courtroom and his desire to control the court proceedings by dictating which court officers would be allowed to transport him to the courtroom that was the basis of defendant’s refusal to be transported to the courtroom. Not only did the Court lack the authority to order a change in the court officers who staffed the courtroom, but even if the Court had such authority, to do so would be tantamount to yielding control of the court proceedings to defendant by allowing him to dictate the rules as to who should be allowed to transport him and to reward him for his pattern of disruptive and insubordinate behavior throughout the course of the trial. And clearly when defendant threatened violence if his handcuffs were removed, the Court had little choice but to proceed in his absence. Thus, in light of defendant’s history of disorderly and disruptive behavior, his actions that precipitated the use of force to restrain him, his threats of violence if brought to the courtroom, and his unjustified refusal to be brought to the courtroom, defendant forfeited his right to be present on December 11, 2019 when counsel delivered his summation. See People v. McCray, 165 A.D.3d 595 (1st Dept. 2018)(defendant forfeited his right to be present at trial due to his frequent outbursts and interruptions of the proceedings); People v. Davis, 149 A.D.3d 451, 453 (1st Dept. 2017) (defendant forfeited his right to be present at trial when he refused to be produced in the courtroom, with full knowledge that his trial was in progress); People v. Edwards, 265 A.D.2d 220 (1st Dept. 1999)(defendant who had been disorderly and disruptive and disregarded court’s directions to be silent, properly excluded from courtroom); see also People v. Ramos, 2020 WL216277 (2d Dept. 2020)(defendant waived his right to be present where he engaged in a persistent course of conduct, which included disrupting the proceedings and choosing to absent himself from the proceedings). It is equally axiomatic that a defendant may waive his right to be present at all material stages of trial if such waiver is made knowingly and voluntarily, and any such waiver may be inferred from a defendant’s conduct. See Hoyt v. Lewin, 44 F.Supp2d 258, 274-75 (SDNY 2006 (Rakoff, J.). Here, where deliberations already had commenced, the record is clear that defendant knowingly and voluntarily waived his right to be present on Friday, December 13, 2019. Initially, on December 12, 2019, just prior to the commencement of deliberations and after deliberations had commenced, the Court twice stated in defendant’s presence that deliberations would continue on December 13th , and that a verdict would be taken in defendant’s absence if he chose to absent himself from Court. Thus, defendant plainly knew what the consequences would be of his failure to appear in court. Similarly, the record is clear that defendant’s choice to absent himself from court was voluntary. Initially, it is again worth noting that defendant does not claim or adduce any evidence that factors external to defendant, such as injuries or medical condition, over which he had no control, caused his absence from the trial on December 13th. Rather, defendant’s claim that his failure to attend court was not truly voluntary rests on his belief that he was in effect impermissibly forced to make a choice between his First Amendment right to the free exercise of his religion and his right to be present at trial. This claim falls short. This is so because the Court made an effort to accommodate defendant’s religious practices by offering to set aside some time and make arrangements for defendant to engage in prayer in the courthouse if he so desired. Significantly, at the time this accommodation was offered, no objection was made to its adequacy and no alternative was offered by defendant. Given this attempt to accommodate defendant’s religious obligations, any burden on his free exercise of religion was incidental and outweighed by the compelling state interest in avoiding a mistrial, the possibility of which increases with a three-day adjournment once deliberations have commenced and any juror who cannot continue serving for any reason, including illness, incapacity, or unavailability cannot be discharged without the consent of defendant. See CPL 270.35. This possibility was especially real here, where defendant had been disobedient, disruptive and prone to outbursts throughout the tumultuous history of this case. Under the facts and circumstances present here, it was clear that the need to continue deliberations outweighed defendant’s right to be absent for religious purposes on Friday, December 13, 2019, particularly where the Court was prepared to provide defendant with a venue to pray in the courthouse. Thus, when defendant refused to be transported to the courthouse on December 13, 2019, defendant waived his right to be present when the jury resumed deliberations. That the jury thereupon reached a verdict does not alter this determination. See People v. Eubanks, 41 A.D.3d 241 (1st Dept. 2007)(defendant waived his right to be present for jury’s verdict where defendant chose not to appear in court on a Friday due to religious observance), writ of habeas corpus denied, Eubanks v. Lempke, 2011 WL 744770 (SDNY 2011); People v. Farrell, 28 A.D.3d 244 (1st Dept. 2006)(Court did not violate defendant’s right to freely exercise his religion by denying his request for an adjournment on a Friday afternoon so that he could return to Rikers Island before sundown to observe Jewish Sabbath; jury in midst of deliberations and had already reached a verdict on several charges.), writ of habeas corpus denied, Farrell v. Ercole, 2011 WL8198114 (SDNY 2011); People v. Hall, 2 A.D.3d 2227, 228 (1st Dept. 2003)(Court properly refused to suspend deliberations until following Monday so that Muslim defendant could attend religious services on Friday; court had compelling interest in completing trial without a three-day hiatus in deliberations and court offered to make a reasonable effort to allow defendant to attend services near the courthouse if defendant came to court on Friday), writ of habeas corpus denied, Hoyt v. Lewin, 44 F.Supp.2d 258 (SDNY 2006)(compelling government interest in not interrupting deliberations for three days outweighs the precious and sensitive right of a person to exercise his or her religion); People v. Trubin, 304 A.D.2d 312 (1st Dept. 2003)(Muslim defendant, who refused to be produced on a Friday on religious grounds deemed to have waived his right to be present for continued deliberations and rendition of verdict; court warned defendant that his failure to appear in court on Friday would be deemed a waiver of his right to be present and Court made an attempt to reasonably accommodate defendant’s desire to pray during the luncheon recess), writ of habeas corpus denied, Trubin v. Mazzuca, 2006 WL 187669 (SDNY 2006); People v. Johnson, 295 AD2d 106 (1st Dept. 2002)(where deliberations had commenced, defendant, who refused to appear in court on Friday and chose to remain on Rikers Island to attend religious services, deemed to have waived his right to be present; court concludes that three-day adjournment would have substantially jeopardized State’s compelling interest in insuring a fair trial for both defendant and the People); People v. Morgan, 265 A.D.2d 230 (1st Dept. 1999)(Court properly denied defendant’s request to suspend deliberations on Friday to allow him to perform religious observance where Court had made arrangements for defendant to pray on Friday; the incidental burden on defendant’s religious practice was justified by State’s paramount and compelling interest in guaranteeing a fair trial), writ of habeas corpus denied, Morgan v. Walsh, 2002 WL 34672311 (SDNY 2002).6 Accordingly, defendant’s motion to set aside the verdict is denied. See CPL §330.30(1). This is the decision, opinion, and order of the Court. Dated: January 31, 2020
