PEOPLE v. WILKINS (2006)

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered February 27, 2003, convicting defendant, after a jury trial, of robbery in the first degree (four counts), robbery in the second degree and criminal possession of a weapon in the second degree (two counts), and sentencing him, as a second violent felony offender, to an aggregate term of 25 years, unanimously affirmed.

 Defendant forfeited his statutory and constitutional right to be present during the rendition of the verdict.   The court properly exercised its discretion in removing him from the courtroom, and we conclude that under the particular circumstances of this case the court was not obligated to warn him that his continued disruptive conduct would result in his removal.   After the foreperson announced the jury's guilty verdict as to the first two counts, defendant suddenly charged across the floor and attempted to attack the prosecutor, in close proximity to the jurors.   Defendant had to be restrained by numerous court officers, some of whom were injured in the violent struggle.   After the officers succeeded in removing defendant, the court accepted the remainder of the jury's verdict in his absence.

The Court of Appeals has observed, in dictum, that “it would seem advisable that, where practicable the defendant be warned that his conduct may result in the imposition of court sanctions” (People v. Palermo, 32 N.Y.2d 222, 226, 344 N.Y.S.2d 874, 298 N.E.2d 61 [1973] [emphasis added] ), and we recognize that normally a defendant should not be removed unless he or she has persisted in disruptive conduct after being warned that such conduct will lead to removal (see CPL 260.20;  Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 [1970];  People v. Rivas, 306 A.D.2d 10, 11-12, 762 N.Y.S.2d 34 [2003] ).   However, “even absent a warning, a defendant may be found to have forfeited certain trial-related constitutional rights based on certain types of misconduct” (Gilchrist v. O'Keefe, 260 F.3d 87, 97 [2d Cir.2001], cert. denied 535 U.S. 1064, 122 S.Ct. 1933, 152 L.Ed.2d 839 [2002];  see also Franco v. Costello, 322 F.Supp.2d 474, 477 [S.D.N.Y.2004] ).

Here, defendant's violent behavior in the courtroom went far beyond mere disruption, and created an emergency necessitating his immediate removal.   Under the circumstances, the court had no practical opportunity to issue a verbal warning that defendant would be removed if he continued to engage in such conduct, and it appears that such a warning would have served no purpose.   We agree with the Michigan Court of Appeals that “where the nature of a defendant's disruption consists of violence toward another person, we are reluctant to hold that the defendant must first be warned before being removed.   Defendant should not be permitted ‘one free swing’ ․” (People v. Staffney, 187 Mich.App. 660, 665, 468 N.W.2d 238 [1990];  accord State v. Fletcher, 252 Ga. 498, 500, 314 S.E.2d 888 [1984];  State v. Rowe, 33 N.C.App. 611, 613, 235 S.E.2d 873 [1977], review denied and appeal dismissed, 293 N.C. 364, 237 S.E.2d 851 [1977] ).   We conclude that the court had no practical alternative except to remove defendant immediately and take the remainder of the verdict without him.

 The court properly denied defendant's motion to suppress statements.   Nothing occurred that obligated the police to readminister Miranda warnings following a break in the interrogation (see e.g. People v. Dudley, 31 A.D.3d 264, 819 N.Y.S.2d 237 [2006] ).

Defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).

 We perceive no basis for reducing the sentence.

Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.