PEOPLE v. JORGE (2026)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Peter F. Vallone, J.), rendered August 14, 2023, convicting him of assault in the third degree and harassment in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for further proceedings on the indictment.

Following a jury trial, the defendant was convicted of assault in the third degree (Penal Law § 120.00[1] ) and harassment in the second degree (id. § 240.26[1] ), arising from an incident during which the defendant struck the complainant while riding the subway.

Contrary to the defendant's contention, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620), it was legally sufficient to establish, beyond a reasonable doubt, the element of physical injury required for the charge of assault in the third degree (Penal Law § 120.00[1] ), as the evidence demonstrated that the complainant suffered substantial pain (see id. § 10.00[9];  People v. Chiddick, 8 NY3d 445, 447;  People v. O'Doherty, 236 AD3d 929).  Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410;  People v. King, 194 AD3d 842).  Upon reviewing the record here, we are satisfied that the verdict of guilt as to the count of assault in the third degree was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).

However, the defendant correctly contends that the Supreme Court erred in conducting the trial in his absence.  On the first day of trial, the defendant, who was at liberty, did not appear at the scheduled time of 9:30 a.m. At approximately 11:55 a.m., the court held a colloquy on the record, during which the court and defense counsel stated that the defendant had previously assured them of his intention to be present at trial.  Defense counsel further informed the court that he did not know where the defendant was, and had looked for him in the courthouse.  Defense counsel stated that he had been unable to reach the defendant that morning, but had received a message from the defendant's mother indicating that the defendant was “on the way.”  The People informed the court that a trial preparation assistant had contacted various hospitals and correctional facilities in an effort to locate the defendant, but the People acknowledged that one of the hospitals purportedly called by the trial assistant “no longer exist[ed]” and that the trial assistant's checklist, from which the prosecutor was reading into the record, bore the name and indictment number of a different defendant in another case.  Following limited inquiry, the court commenced the trial in the defendant's absence shortly after 12:00 p.m.

“ ‘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. Johnson, 154 AD3d 777, 779, quoting People v. Parker, 57 N.Y.2d 136, 139).  A defendant may “forfeit that right by deliberately absenting himself [or herself] from the proceedings” (People v. Pierotti, 208 AD3d 1254, 1254 [internal quotation marks omitted];  see People v. Redzeposki, 7 NY3d 725;  People v. Forrest, 186 AD3d 1395, 1397).  However, “ ‘before proceeding in the defendant's absence, the court has an obligation to inquire into the surrounding circumstances to determine if the defendant's absence is deliberate and to recite on the record the reasons for its finding,’ ” and “ ‘[t]he failure to conduct such an inquiry constitutes reversible error’ ” (People v. Johnson, 154 AD3d at 779, quoting People v. Amato, 172 A.D.2d 545, 545;  see People v. Brooks, 75 N.Y.2d 898, 899;  People v. Kerr, 234 AD3d 794, 794–795).  Furthermore, “[w]hile the right to be present may, under some circumstances, be waived by a defendant's conduct, trial in absentia is not thereby automatically authorized” (People v. Johnson, 154 AD3d at 779 [internal quotation marks omitted];  see People v. Parker, 57 N.Y.2d at 142).  “Rather, the trial court must exercise its sound discretion upon consideration of all appropriate factors, including the possibility that [the] defendant could be located within a reasonable period of time, the difficulty of rescheduling trial and the chance that evidence will be lost or witnesses will disappear” (People v. Parker, 57 N.Y.2d at 142;  see People v. Kerr, 234 AD3d 794, 794–795;  People v. June, 116 AD3d 1094, 1095–1096).

Here, the Supreme Court erred in conducting the trial in the defendant's absence without sufficient inquiry into the circumstances surrounding the defendant's absence, and the record is therefore insufficient to establish that the defendant deliberately absented himself from the proceedings and thereby forfeited his right to be present (see People v. Brooks, 75 N.Y.2d at 899;  People v. Kerr, 234 AD3d 794;  People v. Johnson, 154 AD3d at 778–780;  People v. Charles, 176 A.D.2d 891;  cf.  People v. George, 219 AD3d 502, 503).  Furthermore, the record does not reflect that the court considered all of the appropriate factors before proceeding in the defendant's absence (see People v. Parker, 57 N.Y.2d at 142;  People v. Johnson, 154 AD3d at 780;  People v. June, 116 AD3d 1094).

Accordingly, we reverse and remit the matter to the Supreme Court, Queens County, for further proceedings on the indictment.

The defendant's contentions concerning the testimony of an emergency medical technician are without merit.  The defendant's remaining contentions are academic in light of our determination.

BARROS, J.P., WOOTEN, VENTURA and GOLDBERG VELAZQUEZ, JJ., concur.