County Court, Steuben County, May 30, 2019

Zev Goldstein, PLLC, Monsey (Zev Goldstein of counsel), for appellant.

The above-referenced matter has come before the court on the defendant's appeal from a decision and order of the Cohocton Town Court (Hon. David Domm) denying the defendant's request to proceed in absentia at the trial on a uniform traffic ticket which charged him with a speeding violation.

The defendant submitted an appellate brief, received by chambers on February 19, 2019, which included an affidavit of service establishing that a copy of the brief was mailed to the District Attorney's Office on February 13, 2019. The District Attorney's Office did not submit a reply brief. Therefore, this appeal will be decided based on the submissions received from the Cohocton Town Court as required by this court's order of December 11, 2018, the brief submitted by the defendant and the applicable statutory and case law.

In this appeal, the defendant claims that the trial court violated his right to proceed to trial in absentia when the court refused the defendant's request to waive his presence at trial even though the defendant submitted a subscribed waiver of his right to be present at the trial, as required by statute.

On June 3, 2017, the defendant was ticketed for speeding in the Town of Cohocton in violation of Vehicle and Traffic Law § 1180 (d). The defendant, through his attorney, entered a plea of not guilty by mail and provided the court with a written and subscribed waiver of his right to be personally present at any further court proceedings. The People did not object to the defendant's request for a waiver. However, the local court justice refused to allow the defendant to waive his right to be present at trial and, as a result, the defendant, through his attorney, pleaded guilty to a speeding charge. The defendant filed an appeal, and this court issued a written decision finding that, contrary to the trial court's decision, the defendant had the option of waiving his right to be present at trial and the court could not require him to be present if he [*2]waived his right to attend. This court vacated the defendant's plea, conviction and sentence and returned the matter to local court for further proceedings (People v Bollu, 61 Misc 3d 752, 756 [Steuben County Ct 2018, Roche, J.]).

Upon reappearance in local court, before a different local justice, the defendant once again sought to waive his right to{**65 Misc 3d at 425} be present at the trial. However, unlike the prior proceeding, the District Attorney specifically objected to the defendant's request for a waiver and asked the court to deny the defendant's application. The District Attorney argued that, based on his interpretation of the statutory language of CPL 340.50 (2), the defendant could waive his right to personally appear in court only if the District Attorney did not object. The District Attorney's rationale for his objection was that "given the stance of this case, the People have significant concerns that Defendant will not appear." The local court Justice denied the defendant's request for waiver on the basis that "this court could not have a fair and impartial trial for [the defendant] without him being present." The Justice further explained that "the biggest problem according to the resource center is that when testifying that [sic] the Trooper would have no way of identifying the defendant under oath." Thereafter, the defendant's attorney sent a letter to the court objecting to the trial court's decision and entered a plea of guilty to the speeding charge on behalf of the defendant. The court accepted the defendant's guilty plea and fined him $183. The defendant's attorney filed a notice of appeal, an affidavit of errors and affidavits of service.

The issues presented on this appeal, as framed by the defendant, are whether the trial court's refusal to accept the defendant's waiver of his presence at trial (1) violated the previous decision and order of this court, (2) unconstitutionally shifted the burden of identification to the defendant, (3) granted the District Attorney's objection, made without stating the basis therefore, to the defendant's waiver of his right to be present at trial, and (4) violated the defendant's constitutional rights of due process, equal protection, and privileges and immunities.

Although the defendant casts his appeal as one based primarily on constitutional issues, in this case, the issue of whether or not a defendant can waive the right to be present at trial must, in the first instance, be determined by the analysis of the relevant statute. The crux of this matter then is one of statutory interpretation rather than constitutional review.

The court's primary consideration when interpreting the meaning of a statute is to look first at the statute's language and to consider the purpose for which the law was passed, as this is the clearest indicator of legislative intent (Roberts v {**65 Misc 3d at 426}Tishman Speyer Props., L.P., 13 NY3d 270, 286 [2009]; Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006]; Carney v Philippone, 1 NY3d 333, 339 [2004]; Matter of New York State Land Tit. Assn., Inc. v New York State Dept. of Fin. Servs., 169 AD3d 18, 28-29 [1st Dept 2019], citing Matter of Anonymous v Molik, 32 NY3d 30, 37 [2018]). If the language is ambiguous, the court should examine the statute's legislative history (Roberts v Tishman Speyer Props., L.P.). Only where the statutory language is ambiguous or where literal construction would lead to "absurd or unreasonable consequences" should a court substitute its own interpretation of a statute (Matter of New York State Land Tit. Assn., Inc. v New York State Dept. of Fin. Servs. at 29).

The statute at issue in this appeal is CPL 340.50 (2) which governs a defendant's presence at trial in a local criminal court. That statute provides:

"On motion of a defendant represented by counsel, the court may, in the absence of an objection by the people, issue an order dispensing with the requirement that the [*3]defendant be personally present at trial. Such an order may be made only upon the filing of a written and subscribed statement by the defendant declaring that he waives his right to be personally present at the trial and authorizing his attorney to conduct his defense."

On its face, this statute limits this waiver to "a defendant represented by counsel" and requires the submission of a "subscribed statement by the defendant." However, the statute fails to detail the possible grounds for "an objection by the people" or what standard a judge should apply in determining whether to grant the waiver. At best, this statute is incomplete and ambiguous and requires a deeper analysis to determine the legislative intent.

Prior to 1971, criminal cases were governed by the Code of Criminal Procedure. In 1971, the Code of Criminal Procedure was repealed and replaced by the Criminal Procedure Law. The purpose for creating the new law was to "obtain the fairest and most effective procedures for the treatment of persons charged with the commission of crimes, in order to protect individual freedoms, to safeguard the public and to promote respect for law and the legal process" (Governor's Mem approving L 1970, chs 996, 997, 1970 NY Legis Ann at 533).

In the Practice Commentaries following CPL 340.50, the commentator notes that the only difference between CPL {**65 Misc 3d at 427}340.50 governing the defendant's presence at a trial on a local court matter, and the statutory provision governing a defendant's presence at a trial on an indictment, is that CPL 340.50 allows a "counseled defendant to waive his or her presence at trial 'in the absence of an objection by the people' " (William C. Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 340.50; CPL 340.50 [2]). The Commentary goes on to note, however, that, while there is no statutory provision for a person charged by indictment to waive his or her presence at trial, decisional law allows the defendant to waive this right provided the waiver is "knowingly, voluntarily and intelligently relinquished" (id. [citations omitted]). For further discussion, the Commentary directs the reader to the Commentary following CPL 260.20, the statute governing defendant's presence at trial on an indictment.

This Commentary notes that "[a] defendant may choose for tactical or other reasons to waive his or her presence at a trial or ancillary proceeding" and this right can be exercised if the defendant is not only aware of his or her right to be present but also of the consequences of choosing not to be present (William C. Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 260.20). This observation is supported by ample case law (Diaz v United States, 223 US 442 [1912]; People v Parker, 57 NY2d 136 [1982]; People v Epps, 37 NY2d 343, 349 [1975]; People v Davis, 194 AD2d 437 [1st Dept 1993]). The original purpose for the law requiring a defendant, who has been charged with a felony, to be personally present during the trial was to guard defendants from secret trials and protect their fundamental right to a public trial (People ex rel. Lupo v Fay, 13 NY2d 253, 256 [1963]; People v Thorn, 156 NY 286 [1898]). However, because of the development of the law regarding the defendant's right to counsel and the abandonment of trial by ordeal or battle, the law is now well-settled that a defendant can, under certain circumstances, waive his right to be present at trial (People v Parker; People v Epps; People v Davis).

Statutory law provides this right of waiver to all charges filed in local court including misdemeanor complaints, prosecutor's informations and simplified informations which, by definition, include simplified traffic informations (CPL 340.10 [1]; 1.20 [5] [a]). In contrast to felony charges which, by statute, require the defendant to be present in court for trial (CPL 260.20), the statutory law governing traffic infractions in local{**65 Misc 3d at 428} court provides a procedure by which a defendant may waive his personal appearance at trial (CPL 340.50 [2]). Such a waiver [*4]must be brought on motion and may be granted "in the absence of an objection by the people" and after the defendant knowingly, voluntarily and intelligently executes a waiver of his right to be present and authorizes counsel to conduct the defense on his or her behalf (CPL 340.50 [2]; William C. Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 340.50).

It is clear that a defendant charged by an indictment, despite the absence of any statutory authorization, may, based on case law, waive his presence at trial. Unfortunately, there is a lack of case law extending this right to waive his or her presence at a trial in local court on a much less serious offense, such as in this case, a speeding ticket. Therefore, if the court accepts the District Attorney's position that he has veto power over a defendant's request to waive his right to be present at a local court trial, there is presented the incongruous result that a defendant can waive his right to be present at a trial on murder charges but not at a trial on a traffic ticket. This is the "absurd or unreasonable consequence" referred to in case law and, in that instance, the court should substitute its own interpretation of the statute (Matter of New York State Land Tit. Assn., Inc. v New York State Dept. of Fin. Servs. at 29).

A defendant is afforded many rights including the right to remain silent, the right to counsel and the right to a jury trial (in some instances). However, all of these rights may be waived provided such waiver is knowingly, intelligently and voluntarily made. The right to be present at trial, also referred to as the right of confrontation, is a privilege extended to, rather than a restriction on, the accused and he is free to assert it or waive it as to him may seem advantageous (Diaz v United States at 451) and a defendant may waive that right provided that the waiver is made knowingly, intelligently and voluntarily. To hold otherwise is not supported by the intent of the Constitution or by case law.

Based on the Constitution and case law that has developed around this issue, this court finds that a District Attorney may object to the defendant's waiver or a court may reject the defendant's waiver, only when the proposed waiver document does not comport with statutory requirements or when there is insufficient proof that the waiver is knowingly, voluntarily and intelligently made. In this case, this court made a previous{**65 Misc 3d at 429} finding that the defendant's waiver met the statutory requirements and was knowingly, voluntarily and intelligently made.

Therefore, based on the above, the defendant's appeal is granted, and his conviction is reversed.

Rather than remitting this to the trial court, as this court did on the first appeal in this matter, given the minor nature of the offense charged in this case, the uniform traffic ticket is dismissed in lieu of remanding this matter (People v Burwell, 53 NY2d 849 [1981]; People v Mamady, 62 Misc 3d 138[A], 2019 NY Slip Op 50045[U] [App Term, 1st Dept 2019]).

Therefore, it is hereby ordered that the Town Justice's decision denying the defendant's motion to waive his appearance at trial is hereby vacated; and it is further ordered that the defendant's plea, conviction and sentence entered on October 10, 2017, are hereby vacated; and it is further ordered that the uniform traffic ticket is dismissed.