THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. BRENT ZAFUTO DEFENDANT APPELLANT (2010)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, burglary in the second degree (Penal Law § 140.25 [2] ).   Contrary to the contention of defendant, County Court did not abuse its discretion in continuing the trial in his absence.   The court had given defendant the requisite warnings pursuant to People v. Parker (57 N.Y.2d 136, 141), and he therefore waived his right to be present at trial (see People v. Lewis, 57 AD3d 1505, lv denied 12 NY3d 785).   Further, the court made a proper inquiry and placed its reasoning on the record for determining that defendant's absence was deliberate (cf.  People v. Law, 198 A.D.2d 857, 858, lv denied 83 N.Y.2d 807;  see generally People v. Brooks, 75 N.Y.2d 898, mot to amend remittitur granted 76 N.Y.2d 746).

Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we reject defendant's further contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495).  “Issues with respect to ‘the credibility of prosecution witnesses concerning the voluntariness of the confession were for the jury to decide, and there is no basis in the record to disturb the jury's resolution of those issues' “ (People v. Warney, 299 A.D.2d 956, 957, lv denied 99 N.Y.2d 633).   Finally, the sentence is not unduly harsh or severe.

Patricia L. Morgan

Clerk of the Court