Judgment of the Supreme Court, Kings- County, rendered July 11, 1973, affirmed. Appellant stands convicted of the brutal murder of a woman shopkeeper arid the attempted murder of her daughter. One of his claims on appeal is that his absence from major portions of his trial denied him his constitutional and statutory rights. The background facts are as follows: Appellant was not apprehended until almost a year after the commission of the crime and the trial was delayed for another two years by numerous separate proceedings, including three competency hearings (after each of which appellant was found competent to proceed), repeated changes of assigned counsel and various unsuccessful efforts by appellant to retain a private attorney. When the trial finally began and just after the completion of jury selection, appellant disrupted the courtroom by yelling out and overturning the counsel table. The trial court warned appellant that it would not tolerate such conduct and would consider binding and gagging him or putting him out of the courtroom altogether if he did not behave. Appellant refused to promise good behavior in the future and, when the court called for the return of the jury, indicated that he did not want to stay in the courtroom or have the trial proceed in his absence. The court then informed him of his right to be present and to see and hear the witnesses against him. Appellant claimed that he could not understand and that his head was “ spinning ”. Although the court opined that he was trying to stall the trial, it nevertheless adjourned the trial to the next morning. That next morning, after a courtroom visit with his mother and denial of his requests for an adjournment to raise money for a private attorney or to prepare to defend the case himself, appellant indicated to the court that he did not want to stay in the courtroom. Advised of all the alternatives, appellant informed his assigned counsel, on the record, that the latter could proceed without him, whereupon appellant was escorted out of the courtroom. Appellant was then absent from the trial during opening statements and the testimony of the medical examiner and the first police officer to arrive at the scene of the crime after the murder. He was returned, pursuant to the court’s direction, for the identification testimony of one Phyllis Laffer and promptly fell to the floor in an ostensible fit. He apparently remained on the floor during all of the witness’s direct examination and was then taken out, assigned counsel commenting that he did not believe that appellant wanted to stay. During a recess in this witness’s cross-examination, counsel conferred with appellant as to the testimony to date. In addition, appellant returned to the courtroom to speak with- his mother but, when he discovered that she had left, he asked and received permission to absent himself again. When this witness’s cross-examination was completed, appellant was once more returned to the courtroom for the identification testimony of Gertrude Laffer, the victim of the attempted murder. He apparently sat quietly during her entire testimony and, the next morning, informed the court that he wished to remain in the courtroom and would behave himself. He did so remain and the trial proceeded without further incident. After the rendition of the verdict, appellant told the court that he had “ created a lot of things that I shouldn’t ” because he did not think he would get a fair trial. The rule is well settled that a defendant charged with a felony not punishable by death may waive his Sixth Amendment right to be present at every stage of the trial and to confront the witnesses against him (Snyder v. Massachusetts, 291 U. S. 97, 105-106; Diaz v. United States, 223 U. S. 442; United States v. Taylor, 478 F. 2d 689, affd. 414 U. S. 17; United States v. Tortora, 464 F. 2d 1202, cert. den. sub nom. Santoro v. United States, 409 U. S. 1063; People ex rel. Lupo v. Fay, 13 N Y [1031]*10312d 253, cert. den. 376 U. S. 958; People v. Winship, 309 N. Y. 311; People v. La Barbera, 274 N. Y. 339). On the facts at bar, a knowing and voluntary waiver was clearly made, for appellant was fully advised of his rights and the fact that the trial could proceed without him, before he informed assigned counsel and the court, on the record, that he did not wish to remain in the courtroom and that the trial could proceed in his absence (cf. Illinois v. Allen, 397 U. S. 337 [now codified in GPL 260.20], where the defendant was forcibly removed from the courtroom after insisting upon his “ right ” to be present at the trial and, at the same time, to disrupt it; United States v. Crutcher, 405 F. 2d 239, cert. den. 394 U. S. 908, where the trial court had failed to advise the defendant of his rights and get an effective waiver on the record; People v. Anderson, 16 N Y 2d 282, where the unexplained absence of a defendant in custody from a suppression hearing mandated a reversal of his conviction). Indeed, it is apparent on this record that appellant’s actions at the trial were a ploy conceived either to delay the trial or obtain a mistrial. Such disingenuous behavior was never intended to be protected under the Sixth Amendment. We have examined appellant’s other assignments of error and find no warrant for a reversal of his conviction. As respects his claim of ineffective assistance of counsel, we merely note that although appellant apparently refused to discuss his case with assigned counsel befare trial, the latter had fully prepared himself by reading the Wade hearing minutes, conferring at length with his predecessor, who had represented appellant for almost a year prior thereto, and reviewing this attorney’s files. Furthermore, it is undisputed that appellant’s trial conduct placed his counsel in an extremely difficult position. Perhaps fearing that the jury might conclude appellant was a real “ psycho ” who needed to be put away in any event, counsel pursued a course of complete frankness with both the jury and the court and, in summation, attempted to minimize any prejudice accruing from his bizarre behavior by implying that appellant was simply acting out of his fears and frustrations with respect to securing a fair trial in the only way he knew. We cannot condemn counsel’s approach on these facts or fault him for not specifically denying that appellant’s “fit” may have been self-induced, as opposed to medically caused. Gulotta, P. J., Hopkins, Martuscello and Christ, JJ., concur; Shapiro, J. dissents and votes to reverse the judgment of conviction and order a new trial, with the following memorandum: My brethren, in the majority, and I read the record in this case differently. They find that the defendant knowingly waived his right to be present at the trial. I find no such knowing waiver. They find that he was adequately represented by counsel. I find that he was grossly misrepresented. The defendant went to trial on March 12, 1973 represented, against his will, by assigned counsel after efforts to retain an attorney proved unsuccessful.
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Judgment of the Supreme Court, Kings- County, rendered July 11, 1973, affirmed. Appellant stands convicted of the brutal murder of a woman shopkeeper arid the attempted murder of her daughter. One of his claims on appeal is that his absence from major portions of his trial denied him his constitutional and statutory rights. The background facts are as follows: Appellant was not apprehended until almost a year after the commission of the crime and the trial was delayed for another two years by numerous separate proceedings, including three competency hearings (after each of which appellant was found competent to proceed), repeated changes of assigned counsel and various unsuccessful efforts by appellant to retain a private attorney. When the trial finally began and just after the completion of jury selection, appellant disrupted the courtroom by yelling out and overturning the counsel table. The trial court warned appellant that it would not tolerate such conduct and would consider binding and gagging him or putting him out of the courtroom altogether if he did not behave. Appellant refused to promise good behavior in the future and, when the court called for the return of the jury, indicated that he did not want to stay in the courtroom or have the trial proceed in his absence. The court then informed him of his right to be present and to see and hear the witnesses against him. Appellant claimed that he could not understand and that his head was “ spinning ”. Although the court opined that he was trying to stall the trial, it nevertheless adjourned the trial to the next morning. That next morning, after a courtroom visit with his mother and denial of his requests for an adjournment to raise money for a private attorney or to prepare to defend the case himself, appellant indicated to the court that he did not want to stay in the courtroom. Advised of all the alternatives, appellant informed his assigned counsel, on the record, that the latter could proceed without him, whereupon appellant was escorted out of the courtroom. Appellant was then absent from the trial during opening statements and the testimony of the medical examiner and the first police officer to arrive at the scene of the crime after the murder. He was returned, pursuant to the court’s direction, for the identification testimony of one Phyllis Laffer and promptly fell to the floor in an ostensible fit. He apparently remained on the floor during all of the witness’s direct examination and was then taken out, assigned counsel commenting that he did not believe that appellant wanted to stay. During a recess in this witness’s cross-examination, counsel conferred with appellant as to the testimony to date. In addition, appellant returned to the courtroom to speak with- his mother but, when he discovered that she had left, he asked and received permission to absent himself again. When this witness’s cross-examination was completed, appellant was once more returned to the courtroom for the identification testimony of Gertrude Laffer, the victim of the attempted murder. He apparently sat quietly during her entire testimony and, the next morning, informed the court that he wished to remain in the courtroom and would behave himself. He did so remain and the trial proceeded without further incident. After the rendition of the verdict, appellant told the court that he had “ created a lot of things that I shouldn’t ” because he did not think he would get a fair trial. The rule is well settled that a defendant charged with a felony not punishable by death may waive his Sixth Amendment right to be present at every stage of the trial and to confront the witnesses against him (Snyder v. Massachusetts, 291 U. S. 97, 105-106; Diaz v. United States, 223 U. S. 442; United States v. Taylor, 478 F. 2d 689, affd. 414 U. S. 17; United States v. Tortora, 464 F. 2d 1202, cert. den. sub nom. Santoro v. United States, 409 U. S. 1063; People ex rel. Lupo v. Fay, 13 N Y [1031]*10312d 253, cert. den. 376 U. S. 958; People v. Winship, 309 N. Y. 311; People v. La Barbera, 274 N. Y. 339). On the facts at bar, a knowing and voluntary waiver was clearly made, for appellant was fully advised of his rights and the fact that the trial could proceed without him, before he informed assigned counsel and the court, on the record, that he did not wish to remain in the courtroom and that the trial could proceed in his absence (cf. Illinois v. Allen, 397 U. S. 337 [now codified in GPL 260.20], where the defendant was forcibly removed from the courtroom after insisting upon his “ right ” to be present at the trial and, at the same time, to disrupt it; United States v. Crutcher, 405 F. 2d 239, cert. den. 394 U. S. 908, where the trial court had failed to advise the defendant of his rights and get an effective waiver on the record; People v. Anderson, 16 N Y 2d 282, where the unexplained absence of a defendant in custody from a suppression hearing mandated a reversal of his conviction). Indeed, it is apparent on this record that appellant’s actions at the trial were a ploy conceived either to delay the trial or obtain a mistrial. Such disingenuous behavior was never intended to be protected under the Sixth Amendment. We have examined appellant’s other assignments of error and find no warrant for a reversal of his conviction. As respects his claim of ineffective assistance of counsel, we merely note that although appellant apparently refused to discuss his case with assigned counsel befare trial, the latter had fully prepared himself by reading the Wade hearing minutes, conferring at length with his predecessor, who had represented appellant for almost a year prior thereto, and reviewing this attorney’s files. Furthermore, it is undisputed that appellant’s trial conduct placed his counsel in an extremely difficult position. Perhaps fearing that the jury might conclude appellant was a real “ psycho ” who needed to be put away in any event, counsel pursued a course of complete frankness with both the jury and the court and, in summation, attempted to minimize any prejudice accruing from his bizarre behavior by implying that appellant was simply acting out of his fears and frustrations with respect to securing a fair trial in the only way he knew. We cannot condemn counsel’s approach on these facts or fault him for not specifically denying that appellant’s “fit” may have been self-induced, as opposed to medically caused. Gulotta, P. J., Hopkins, Martuscello and Christ, JJ., concur; Shapiro, J. dissents and votes to reverse the judgment of conviction and order a new trial, with the following memorandum: My brethren, in the majority, and I read the record in this case differently. They find that the defendant knowingly waived his right to be present at the trial. I find no such knowing waiver. They find that he was adequately represented by counsel. I find that he was grossly misrepresented. The defendant went to trial on March 12, 1973 represented, against his will, by assigned counsel after efforts to retain an attorney proved unsuccessful. Assigned counsel informed the court that he had conferred with the defendant and had read the hearing minutes and was ready for trial although he later asserted that the defendant had refused to talk to him about the ease. His conduct of the defense demonstrated his complete lack of familiarity with the testimony adduced at prior hearings. When the jury selection process was completed and just before the jury left the courtroom, the defendant screamed, “What about me?” and overturned the counsel table. The court warned the defendant he would either be bound, gagged and handcuffed, or put out of the courtroom. The defendant informed the court that he could give no assurances that such conduct would not continue as he had no confidence in his lawyer and had not spoken to him about the case until that day. Defense counsel then stated not that he was familiar with the case but that he was “as prepared as I will ever be. It is true the defendant never told me anything about. He [1032]*1032would not speak to me.” Instead of asking to be relieved because of his patent unfamiliarity with the facts of the ease he merely informed the court that he did not know whether the defendant’s attempts to retain a lawyer were “ a proserastination or a lie".
This, was but the first of several instances in which defense counsel demonstrated his desire to act as a friend of the court rather than as an advocate for his client. .. ..