New Trial Ordered - Defendant Removed from Court


A New Trial is Ordered for a Nassau County Criminal Defendant removed from his trial without warning. This case hails out of Long Island, New York. Practicing as a criminal defense attorney out of Suffolk County, New York, I sometimes hear fellow attorneys and friends discuss criminal cases where someone got “off” on a technicality. When I hear that, I usually think constitution: The criminal defendant asserted his rights under the constitution – the violation of a criminal defendant’s constitutional rights resulted in a new trial or a dismissal. Here, another nuanced constitutional right, the Defendant had the right to be present at all material stages of the his trial. The Appellate Division, Second Department describes that right as fundamental:

A defendant has a “fundamental constitutional right to be present at all material stages of a trial,” including “the court’s charge, admonishments and instructions to the jury” (People v Rivera, 23 NY3d 827, 831; see People v Harris, 76 NY2d 810, 812; People v Mehmedi, 69 NY2d 759, 760). However, “[a] defendant’s right to be present during trial is not absolute,” and “[t]he defendant may be removed from the courtroom if, after being warned by the trial court, the disruptive conduct continues” (People v Joyner, 303 AD2d 421, 421; see Illinois v Allen, 397 US 337, 343; People v Rivas, 306 AD2d 10, 11; People v Connor, 137 AD2d 546, 549). CPL 260.20 provides, in relevant part, “that a defendant who conducts himself in so disorderly and disruptive a manner that his trial cannot be carried on with him in the courtroom may be removed from the courtroom if, after he has been warned by the court that he will be removed if he continues such conduct, he continues to engage in such conduct.”

The New York Law Journal described the case as follows:

During a trial in October 2013, Acting Nassau County Supreme Court Justice Alan Honorof said prior to delivering the jury charge that anyone who wished to leave the courtroom should do so before he gave the instructions.

“I would like to leave,” Burton said.

“I bet you would,” Honorof replied.

The judge tried to continue reading the charge, but Burton protested that he had not received a fair trial. Honorof struck Burton’s comments from the record and told a court officer to “do what you need to do” if Burton spoke out again…Burton then protested that he had been incarcerated for 18 months and had not been allowed to call any of his witnesses. Without further intervention from the judge, a court officer took Burton out of the courtroom…Honorof continued instructing the jury in Burton’s absence. The defendant was returned to the courtroom at the conclusion of the jury charge.

Stefani Goldin, a Syosset solo attorney who was appointed to represent Burton at the trial level, moved for a mistrial because Burton was taken out of the courtroom in handcuffs in front of the jury. Goldin argued that the judge should have removed the jury first and given Burton an opportunity to compose himself so he could be present for the jury charge…Honorof denied the motion and Burton, 43, was convicted of all charges. He was given a minimum sentence of 17 years and is currently being held in Sing Sing Correctional Facility.

The Appellate Division, Second Department, however, described the following colloquy:

The defendant, in the presence of the jury, remarked, “I would like to leave,” to which the court responded, “I bet you would.” After the People indicated that they were ready to proceed, the defendant repeated, three times, “This is not a fair trial,” and also stated that he was “incarcerated.” The court struck the defendant’s remarks from the record, and instructed a court officer, “If he speaks again, officer, do what you need to do.” The court proceeded to deliver its charge, but was interrupted by the defendant. The transcript reflects the following exchange, which ultimately led to the defendant’s removal from the courtroom:

“THE DEFENDANT: I have been violated by my 6th Amend—

“THE SERGEANT: Sit down.

“THE DEFENDANT: They have incarcerated me 17, 18, months. They won’t call none of my witnesses. [18] months I’ve been incarcerated, violated my 6th and 8th and 14th Amendment of due process.

“(Defendant removed from the courtroom.)”

In applying the law to the facts, the appellate court noted that an instruction must be given to the defendant before the defendant’s removal. “In the present case, the trial court erred in removing the defendant from the courtroom without first warning him that he would be removed if he continued his disruptive behavior.” (citations omitted). Statements from a court officer or statements from the judge to a court officer simply will not suffice. The appellate court notes that the statement must be “directed to the defendant” and it must “adequately inform him of the ‘potential consequences which might result from his continued disruptive behavior.’ ” (citing People v Connor, 137 AD2d at 549). The appellate court indicated that Honorof’s instruction to “do what you need to do” was insufficient to warn the defendant.

I would not suggest grandstanding in front of the jury or interrupting a judge, no matter how bad the case looks before a decision. Appointed defenders do not get to pick their clients and, in cases such as this, must object should their client be hauled away without warning. In this case Stefani Goldin represented the defendant and preserved the objection. As a result of the appeal, a new trial is ordered.

Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA); from arraignment to appeal, should you need a criminal defense attorney.


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