PEOPLE v. JONES (2001)

Judgment, Supreme Court, New York County (Bonnie Wittner, J. on dismissal motion;  William Wetzel, J. at jury trial and sentence), rendered October 2, 2000, convicting defendant of grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree, and sentencing him, as a persistent felony offender, to concurrent terms of 15 years to life, unanimously affirmed.

 The record of the hearing conducted upon defendant's dismissal motion supports the court's finding that the People made reasonable efforts to have defendant testify before the Grand Jury (CPL 190.50[5][a];  People v. Evans, 79 N.Y.2d 407, 583 N.Y.S.2d 358, 592 N.E.2d 1362), and that his failure to do so resulted from defense counsel's delay in contacting the prosecutor concerning the scheduling of his appearance (see, People v. Edwards, 283 A.D.2d 219, 728 N.Y.S.2d 364;  People v. Patterson, 189 A.D.2d 733, 593 N.Y.S.2d 8, lv. denied 81 N.Y.2d 975, 598 N.Y.S.2d 776, 615 N.E.2d 233).

 Defendant's continued disruptive behavior in the courtroom, despite repeated warnings from the court, justified his exclusion from the trial and the consequential loss of his right to be present (see, People v. Byrnes, 33 N.Y.2d 343, 352 N.Y.S.2d 913, 308 N.E.2d 435).   Neither defendant nor his attorney requested alternatives to exclusion or that measures be taken so that defendant could monitor the proceedings and consult with his attorney, with whom defendant had refused to communicate in any event.   Accordingly, the issues have not been preserved for appellate review (cf., People v. Robles, 86 N.Y.2d 763, 631 N.Y.S.2d 131, 655 N.E.2d 172), and we decline to review them in the interest of justice.   Were we to review these claims, we would find that under the circumstances, defendant was not deprived of his rights to confrontation or counsel (see, People v. Davis, 270 A.D.2d 162, 704 N.Y.S.2d 592, lv. denied 95 N.Y.2d 795, 711 N.Y.S.2d 163, 733 N.E.2d 235).

The court properly exercised its discretion in sentencing defendant as a persistent felony offender.