PEOPLE v. JENKINS

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Nori JENKINS, appellant.

Decided: November 27, 2007

GLORIA GOLDSTEIN, J.P., PETER B. SKELOS, STEVEN W. FISHER, and MARK C. DILLON, JJ. Lynn W.L. Fahey, New York, N.Y. (Bertrand I. Kahn and David P. Greenberg of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered March 3, 2005, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The Supreme Court did not improvidently exercise its discretion in denying the defendant's repeated applications for further competency examinations pursuant to CPL article 730 (see People v. Tortorici, 92 N.Y.2d 757, 765-766, 686 N.Y.S.2d 346, 709 N.E.2d 87, cert. denied 528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80;  People v. Morgan, 87 N.Y.2d 878, 879-880, 638 N.Y.S.2d 942, 662 N.E.2d 260).   The Supreme Court was entitled to rely on pretrial examination reports finding the defendant fit to proceed, including one dated less than four months before the commencement of trial, as well as its own observations of the defendant, in determining that further examination was unwarranted (see People v. Morgan, 87 N.Y.2d 878, 880-881, 638 N.Y.S.2d 942, 662 N.E.2d 260;  People v. Jones, 25 A.D.3d 809, 810, 807 N.Y.S.2d 653;  People v. Torres, 12 A.D.3d 539, 540, 786 N.Y.S.2d 61;  People v. Felix, 2 A.D.3d 535, 536, 767 N.Y.S.2d 918;  People v. Farhn, 300 A.D.2d 599, 751 N.Y.S.2d 870).

 Contrary to the defendant's contention, the Supreme Court did not improvidently exercise its discretion in denying his request to proceed pro se (see CPL 1.20[11] ).   The court was justified in finding that the request, which was made after trial commenced and the jury was selected and sworn, was designed to prevent the fair and orderly exposition of the issues (see People v. McIntyre, 36 N.Y.2d 10, 17, 364 N.Y.S.2d 837, 324 N.E.2d 322).

 Although a defendant has a fundamental right to be present at all material stages of his trial (see People v. Dokes, 79 N.Y.2d 656, 659, 584 N.Y.S.2d 761, 595 N.E.2d 836), he may forfeit that right by deliberately absenting himself from the proceedings (see People v. Brooks, 75 N.Y.2d 898, 899, 554 N.Y.S.2d 818, 553 N.E.2d 1328;  People v. Sanchez, 65 N.Y.2d 436, 443-444, 492 N.Y.S.2d 577, 482 N.E.2d 56).   When a defendant is absent from the courtroom after trial has begun, the court should make inquiry and recite on the record the facts and reasons it relied upon in determining that the defendant's absence was deliberate before proceeding in the defendant's absence (see People v. Brooks, 75 N.Y.2d at 898, 899, 554 N.Y.S.2d 818, 553 N.E.2d 1328).   The record supports the trial court's determination that the defendant's absence was deliberate (see People v. Green, 216 A.D.2d 581, 582, 629 N.Y.S.2d 53).   Thus, the court properly proceeded with the trial in his absence.

The defendant's remaining contentions are without merit.

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