PEOPLE v. HARRELL (2019)

Judgment, Supreme Court, New York County (Juan M. Merchan, J.), rendered October 21, 2015, as amended December 3, 2015, convicting defendant, after a jury trial, of criminal sexual act in the first degree (two counts), attempted rape in the first degree, sexual abuse in the first degree (two counts) and criminal sexual act in the third degree (two counts), and sentencing him, as a second violent felony offender, to an aggregate term of 25 years, unanimously affirmed.

There was no violation of defendant's right to be present at all material stages of the trial.  He was present during a requested readback of the victim's testimony, and although he was absent for a portion of the preceding discussion regarding the content of the readback, his right to be present did not extend to that discussion (see People v. Rodriguez, 76 N.Y.2d 918, 921, 563 N.Y.S.2d 48, 564 N.E.2d 658 [1990] ).  With regard to the various other portions of the proceedings about which he complains, defendant validly waived and/or forfeited his right to be present (see People v. Spotford, 85 N.Y.2d 593, 597–599, 627 N.Y.S.2d 295, 650 N.E.2d 1296 [1995];  People v. Epps, 37 N.Y.2d 343, 349–351, 372 N.Y.S.2d 606, 334 N.E.2d 566 [1975], cert. denied 423 U.S. 999, 96 S.Ct. 430, 46 L.Ed.2d 374 [1975] ).  The record fails to support defendant's argument that he made a limited waiver of his right to be present that extended to certain proceedings, but did not extend to other proceedings at issue.  The court fully informed defendant of his right to be present and repeatedly warned that the trial would proceed in his absence.  Accordingly, each refusal by defendant to come out of the court pens sufficiently established a waiver, regardless of any other colloquies.  Furthermore, in determining that defendant had, in fact, refused to be present, the court properly acted on reliable information from court and correction personnel (see e. g. People v. Trubin, 304 A.D.2d 312, 757 N.Y.S.2d 279 [1st Dept. 2003], lv denied 100 N.Y.2d 588, 764 N.Y.S.2d 399, 796 N.E.2d 491 [2003] ).

The court properly denied defendant's motions, made before trial and at the close of evidence, to dismiss certain counts of the indictment as multiplicitous.  In each of three pairs of counts, two sex acts were alleged that were separate and distinct, and were not merely two different body movements included in a single crime, as discussed by the Court of Appeals in People v. Alonzo, 16 N.Y.3d 267, 920 N.Y.S.2d 302, 945 N.E.2d 495 (2011).  Indeed, combining the allegations in the challenged pairs of counts into single counts could well have subjected those counts to challenge on the ground of duplicitousness (see id. at 269, 920 N.Y.S.2d 302, 945 N.E.2d 495).