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DEFENDANT WAS REMOVED FROM THE COURTROOM WHEN HE DISRUPTED THE PROCEEDINGS AS THE GUILTY VERDICT WAS BEING DELIVERED; DEFENDANT SHOULD FIRST HAVE BEEN WARNED THAT HE WOULD BE REMOVED IF HE CONTINUED TO DISRUPT THE PROCEEDINGS; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the conviction, over a dissent, determined the defendant should not have been removed form the courtroom without first issuing a warning. The defendant was removed after disrupting the court as the verdict was being delivered:

After the jury foreperson announced “guilty” on the final charge (count 4) of criminal possession of a weapon in the second degree, the clerk proceeded to read back the verdict in order to inquire collectively of the jurors whether such was their verdict (see CPL 310.80). Before the jurors could respond, the defendant disrupted the proceeding by using profanity and declaring his innocence. The trial court immediately directed that the court officers remove the defendant from the courtroom. The defendant repeated his protestation and again the court directed that he be removed from the courtroom. Three more times the defendant either proclaimed his innocence or uttered a one-word profanity, and in each instance the court responded by directing that the defendant be removed from the courtroom. At some point during the foregoing exchanges, the defendant was apparently removed from the courtroom. The clerk read the verdict again, and made the requisite inquiry, to which the jurors responded. The defendant’s counsel thereafter requested that the jury be polled … . The jury was polled and the verdict was entered. …

A criminal defendant’s right to be present at all material stages of trial is encompassed within the confrontation clauses of the Federal and State Constitutions … and the New York Criminal Procedure Law … . The defendant’s outbursts and removal from the courtroom occurred during a material stage of the trial, as the jury had not yet been polled and the verdict had therefore not yet been entered … . However, “[a] defendant’s right to be present during trial is not absolute,” and “[t]he defendant may be removed from the courtroom if, after being warned by the trial court, the disruptive conduct continues” … . People v Antoine, 2020 NY Slip Op 07907, Second Dept 12-23-20

 

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