People v. Herrera

160 A.D.2d 416, 554 N.Y.S.2d 30, 1990 N.Y. App. Div. LEXIS 4280

Opinion

—Judgment, Supreme Court, New York County (Leslie Crocker Snyder, J.), rendered March 11, 1988, convicting defendant, upon his plea of guilty, of two counts of attempted criminal sale of a controlled substance in the third degree and sentencing him, as a second felony offender, to concurrent indeterminate terms of from 4 to 8 years’ imprisonment, unanimously affirmed.

The sentencing minutes reflect that defendant appeared to be in an excited state and refused to keep quiet and listen when the court addressed him. After being warned that if he persisted he would be removed and the matter would proceed in his absence, defendant promptly retorted: "Okay, let’s go” and stood up and attempted to leave the courtroom. The court then ordered defendant removed and, after hearing from defense counsel, imposed the sentence defendant had bargained for at the time of his plea.

While CPL 380.40 and 380.50 afford defendant an absolute right to be present and be heard at the time of sentence, it is clear that defendant voluntarily absented himself from the sentencing proceeding, thereby waiving such right. Concur— Murphy, P. J., Kupferman, Ross, Asch and Rubin, JJ.