PEOPLE v. MOCO (2026)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Deborah Stevens Modica, J.), rendered February 28, 2019, convicting him of criminal contempt in the first degree, menacing in the third degree, assault in the third degree, and unlawful imprisonment in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was convicted, after a jury trial, of criminal contempt in the first degree, menacing in the third degree, assault in the third degree, and unlawful imprisonment in the second degree.

Contrary to the defendant's contention, he was not denied his right to be present at trial.  “A defendant's right to be present at a criminal trial is encompassed within the confrontation clauses of the State and Federal Constitutions” (People v. Parker, 57 N.Y.2d 136, 139;  see People v. George, 219 AD3d 502, 502).  “However, a defendant may ‘forfeit that right by deliberately absenting [themself] from the proceedings’ ” (People v. George, 219 AD3d at 502, quoting People v. Pierotti, 208 AD3d 1254, 1254).  Here, the record demonstrates that the defendant deliberately decided to excuse himself from the second day of the trial with the understanding that the trial would continue in his absence.  Contrary to the defendant's contention, he did not have to choose between leaving the courtroom or having an unfair trial based on his visible physical injuries (see People v. Hollman, 98 AD3d 584, 585;  People v. Williams, 286 A.D.2d 620, 620), and the Supreme Court providently denied his request for an adjournment (see People v. Patierno, 240 AD3d 516, 518).

The defendant's contention that the indictment should have been dismissed pursuant to CPL 30.30 is partially unpreserved for appellate review and, in any event, without merit.  “CPL 30.30 require[s] that the People be ready for trial within specific time periods that vary according to the level of offense charged” (People v. McCutchen, 248 AD3d 827, 828 [internal quotation marks omitted] ).  Where, as here, a defendant is charged with a felony, the People are required to be ready for trial within six months of the commencement of the criminal action (see CPL 30.30[1][a];  People v. Bourdeau, 248 AD3d 1050, 1051;  People v. Pike, 228 AD3d 886, 887).  “A defendant seeking dismissal of the indictment on speedy trial grounds under CPL 30.30 meets [their] initial burden on the motion simply by alleging that the People failed to declare readiness within the statutorily prescribed period” (People v. Perkins, 175 AD3d 1327, 1327).  “ ‘[O]nce the defendant has shown the existence of a delay greater than six months, the burden of proving that certain periods within that time should be excluded falls upon the People’ ” (id., quoting People v. Berkowitz, 50 N.Y.2d 333, 349).

Here, the defendant sustained his initial burden on the motion by alleging that a period of delay in excess of six months had elapsed since the date that he was arraigned on the felony complaint.  However, in opposition, the People demonstrated that certain days within that time period were excludable on the ground, among others, that a motion was under consideration by the Supreme Court (see CPL 30.30[4][a];  People v. Rodriguez, 224 AD3d 783, 783).

The defendant's contention that the indictment should have been dismissed pursuant to CPL 40.40 is unpreserved for appellate review, as the defendant's general motion to dismiss was insufficient to preserve the argument for review (see People v. Dodson, 48 N.Y.2d 36, 38;  People v. Prescott, 104 A.D.2d 610, 611;  see also People v. Finger, 95 N.Y.2d 894, 895).  In any event, the defendant's contention is without merit (see People v. Hopkins, 95 A.D.2d 870, 871).

The Supreme Court lawfully directed that the sentence on the conviction of criminal contempt in the first degree run consecutive to the sentence on the defendant's prior conviction of stalking in the first degree in New York County, as the actus reus elements of those crimes do not overlap (see Penal Law §§ 120.60, 215.51;  People v. McDonnell, 201 AD3d 951, 953).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).

The defendant's remaining contentions, including those raised in his pro se supplemental brief, are without merit.

CONNOLLY, J.P., VOUTSINAS, GOLIA and QUIRK, JJ., concur.