PEOPLE v. DAVIS (2000)

Judgment, Supreme Court, New York County (Patricia Williams, J., at jury trial;  David Saxe, J., at sentence), rendered June 3, 1997, convicting defendant of criminal possession of stolen property in the third degree, and sentencing him, as a second felony offender, to a term of 3 1/212 to 7 years;  and judgment, same court (William Leibovitz, J.), rendered June 3, 1997, convicting defendant, upon his guilty plea, of burglary in the third degree, and sentencing him, as a second felony offender, to a concurrent term of 3 1/212 to 7 years, unanimously affirmed.

 The court properly responded to a note from the deliberating jury and received the jury's verdict notwithstanding defendant's absence.   The communication received from the Department of Correction, coupled with defendant's course of conduct, warranted the court's conclusion that defendant had refused to be produced and had thus voluntarily waived his right to be present (see, People v. Epps, 37 N.Y.2d 343, 372 N.Y.S.2d 606, 334 N.E.2d 566).

 Despite having originally agreed to so charge, the court properly declined to submit to the jury the lesser included offense of criminal possession of stolen property in the fifth degree.   Defense counsel conceded in summation that the value of the truck in question was over $1000, and there was no reasonable view of the evidence, which included the testimony of an appraiser, as well as the testimony of the driver of the truck and the arresting officers concerning the truck's working condition, that the value of the truck was $1000 or less.   In any event, since the court did submit fourth-degree possession, and the jury rejected that alternative by convicting defendant of third-degree possession, failure to submit fifth-degree possession was harmless as a matter of law (People v. Johnson, 87 N.Y.2d 357, 361, 639 N.Y.S.2d 776, 662 N.E.2d 1066).   In view of the content of defendant's summation, the court's cancellation of its original decision to submit fifth-degree possession caused no prejudice (see, People v. Miller, 70 N.Y.2d 903, 907, 524 N.Y.S.2d 386, 519 N.E.2d 297).

With respect to defendant's guilty plea, we find that nothing in his plea allocution casts doubt on his guilt (see, People v. Toxey, 86 N.Y.2d 725, 631 N.Y.S.2d 119, 655 N.E.2d 160).

MEMORANDUM DECISION.