Justice Court of the Town of Penfield, Monroe County, April 26, 2021

Andrew Morabito for defendant.

Sandra J. Doorley, District Attorney (Derek Harnsberger of counsel), for plaintiff.

The fugitive disentitlement doctrine authorizes an appellate court to dismiss the direct appeal of a defendant who is a fugitive from justice. The question presented is whether the doctrine authorizes a trial-level court to summarily deny a CPL article 440 motion filed on behalf of a fugitive. The court finds that the fugitive disentitlement doctrine applies, and declines to consider the merits of the motion.

In September 2017, a jury found defendant guilty of sexual misconduct (Penal Law § 130.20 [1]), a class A misdemeanor, and he was thereafter designated a level two sex offender and sentenced to 60 days in jail and six years' probation. Defendant served the 60 days in jail, but never reported to probation. In May 2018, this court issued a warrant for his arrest for violating the terms and conditions of his probation.

Counsel was assigned to represent defendant on direct appeal, which was heard in Monroe County Court. The judgment of conviction was affirmed (Monroe County Ct, Dec. 3, 2020, Valleriani, J.). The District Attorney did not seek dismissal of the direct appeal based on the fugitive disentitlement doctrine, apparently unaware that there was an active warrant at the time the appeal was pending.

Defense counsel subsequently filed a CPL article 440 motion in Penfield Town Court, seeking a new trial based on alleged juror misconduct and ineffective assistance of counsel. This court, aware that its warrant was outstanding, requested the parties to submit legal argument on the applicability of the fugitive disentitlement doctrine. Both parties submitted a memorandum of law. In his submission, defense counsel acknowledged that a warrant was issued for defendant in May 2018, and remains active. Counsel explained that defendant was homeless after his release from jail, so he contacted his mother in Tennessee, who arranged to have a family [*2]member transport him to Tennessee. Defendant became aware of the warrant during the appeal process but has not returned to the jurisdiction due to his "disability and indigency."

The court scheduled oral argument on the applicability of the fugitive disentitlement doctrine. The court granted{**72 Misc 3d at 282} counsel's request to allow defendant to participate telephonically. Defendant advised the court that he has been living in Tennessee since 2018. He admitted that he was aware that he had been sentenced to probation, but claimed that when released from jail he was not provided with instructions regarding his duty to report. Because he lacked adequate housing, he contacted his mother and travelled to Tennessee. He expressed an inability and unwillingness to surrender on the warrant.

The fugitive disentitlement doctrine allows an appellate court to dismiss an appeal where a defendant has absconded, the rationale being that fleeing the jurisdiction "disentitles the defendant to call upon the resources of the Court for determination of his claims" (People v Taveras, 10 NY3d 227, 232 [2008]). The doctrine is based on the inherent power of courts to enforce their judgments, and it has long been applied by federal and state courts to preclude claims brought by "those who evade the law while simultaneously seeking its protection" (Wechsler v Wechsler, 45 AD3d 470, 472 [1st Dept 2007]; Gary Muldoon, Handling a Criminal Case in New York § 24:38 [Sept. 2020 Update]).

Although most commonly applied by appellate courts in criminal cases, the doctrine has been relied upon by trial courts to reject motions made by a defendant who has absconded. In People v Gilestrella (127 Misc 2d 356 [Sup Ct, NY County 1985]), defendant absconded before the conclusion of his trial. The court held that defendant was not entitled to a decision on a CPL article 330 motion filed on his behalf, stating "when a criminal defendant flees during the pendency of a motion and prior to the conclusion of a trial, trial courts, like appellate courts, should not have to await . . . the pleasure and decision of the [fugitive defendant] to return" (id. at 359 [internal quotation marks omitted]).

A similar conclusion was reached in People v Flannigan (139 Misc 2d 461 [1987]). A warrant was issued for defendant's arrest when he failed to make required court appearances following his arraignment on robbery charges. While the warrant was pending, defense counsel filed an omnibus motion seeking, inter alia, dismissal of the indictment. Citing Gilestrella, the court held that defendant was not entitled to a decision on the omnibus motion, stating that "[s]ince the defendant, by his absence, . . . is not presently available to obey {**72 Misc 3d at 283}the mandate of the court, he has waived his right to petition th[e] court for relief" (id. at 462 [internal quotation marks and citation omitted]).

Finally, in People v Pervez (69 Misc 3d 1006 [2020]), after defendant fled the court's jurisdiction, defense counsel filed a motion to dismiss the indictment on speedy trial grounds. The trial court declined to consider the speedy trial motion based upon the fugitive disentitlement doctrine. The court set forth the justifications that have been advanced in federal and state courts for disentitling fugitives, including: (1) assuring the enforceability of any decision that may be rendered against the fugitive; (2) imposing a penalty for flouting the judicial process; (3) discouraging flights from justice and promoting efficient court operation; and (4) avoiding prejudice to the prosecution caused by the defendant's flight. The court concluded that all of the justifications for applying the doctrine were present, and exercised its discretion to find that defendant was disentitled to have his motion adjudicated by the court.

Although no court has addressed this precise issue, the court concludes that a trial court has the discretion to apply the fugitive disentitlement doctrine and summarily deny a CPL article 440 motion. Furthermore, defendant's conduct in this case compels the conclusion that [*3]the court should exercise its discretion and decline to adjudicate the motion.

Defendant was present in court when he was designated a level two sex offender and sentenced to six years' probation. He was well aware that he was required to abide by the terms and conditions of probation, including those pertaining to his status as a sex offender. Defendant has been absent from the jurisdiction for more than three years. His explanations for leaving the jurisdiction and failing to surrender on the warrant in no way justify or excuse his conduct.

Accordingly, the court declines to adjudicate defendant's CPL article 440 motion pursuant to the fugitive disentitlement doctrine. The summary denial of the motion is without prejudice (People v Diaz, 7 NY3d 831 [2006]). If defendant returns to the court's jurisdiction, defense counsel may seek the court's permission to reinstate the motion.