In re Anthony B.

Appellate Division of the Supreme Court of New York

In re Anthony B.

43 A.D.2d 688, 350 N.Y.S.2d 426, 1973 N.Y. App. Div. LEXIS 2856

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 20, 1973

StatusPublished

This text of 43 A.D.2d 688 (In re Anthony B.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Anthony B., 43 A.D.2d 688, 350 N.Y.S.2d 426, 1973 N.Y. App. Div. LEXIS 2856 (N.Y. Ct. App. 1973).

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Opinion

Order of disposition, Family Court, Bronx County, entered in this juvenile delinquency proceeding on June 8, 1973, following a fact-finding determination, entered on October 6, 1972, that appellant had committed acts, which, if done by an adult, would constitute the crime of attempted [689]*689rape, unanimously reversed, on. the law and in the interests of justice, and a new hearing ordered. It is conceded that appellant was not present in the courtroom when the hearing on September 12, 1972 was held and during which the evidence of appellant’s alleged delinquency was presented. The court clearly erred in starting the hearing in appellant’s absence. Neither the presence of appellant’s mother and the assigned counsel, while the hearing was in progress, nor the appearance of the appellant at the hearing held on October 6, 1972, constitutes a knowing waiver by appellant of his right to be present at his own trial and to be confronted by his accuser. On this record we cannot say that the appellant knowingly waived these constitutional rights. If the appellant had been present when the hearing was commenced, and thereafter left the courtroom without returning, a different problem would be presented. Concur — McGivern, J. P., Markewich, Lane, Steuer and Capozzoli, JJ.

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Order of disposition, Family Court, Bronx County, entered in this juvenile delinquency proceeding on June 8, 1973, following a fact-finding determination, entered on October 6, 1972, that appellant had committed acts, which, if done by an adult, would constitute the crime of attempted [689]*689rape, unanimously reversed, on. the law and in the interests of justice, and a new hearing ordered. It is conceded that appellant was not present in the courtroom when the hearing on September 12, 1972 was held and during which the evidence of appellant’s alleged delinquency was presented. The court clearly erred in starting the hearing in appellant’s absence. Neither the presence of appellant’s mother and the assigned counsel, while the hearing was in progress, nor the appearance of the appellant at the hearing held on October 6, 1972, constitutes a knowing waiver by appellant of his right to be present at his own trial and to be confronted by his accuser. On this record we cannot say that the appellant knowingly waived these constitutional rights. If the appellant had been present when the hearing was commenced, and thereafter left the courtroom without returning, a different problem would be presented. Concur — McGivern, J. P., Markewich, Lane, Steuer and Capozzoli, JJ.

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Bluebook (online)

43 A.D.2d 688, 350 N.Y.S.2d 426, 1973 N.Y. App. Div. LEXIS 2856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-anthony-b-nyappdiv-1973.