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James v. Smith

April 18, 2007

ANDREW JAMES, PETITIONER,
v.
J. T. SMITH, SUPERINTENDENT, SHAWANGUNK CORRECTIONAL FACILITY RESPONDENT.



The opinion of the court was delivered by: John Gleeson, United States District Judge

MEMORANDUM AND ORDER

Andrew James petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges his 1999 conviction in Kings County, following a jury trial in absentia, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree. Oral argument was held by teleconference earlier today. For the reasons set forth below, the petition is denied.

BACKGROUND

A. The Facts

After allegedly selling narcotics to an undercover police officer on February 19, 1999, James was arrested and charged with criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the seventh degree.

On August 3, 1999, James failed to appear at a pre-trial conference scheduled for 9:30 a.m. When he arrived at court later in the day, the court warned him that if he failed to appear on the first day of trial, the trial would proceed without him. See Pre-trial Conf. Tr. 4. James twice signed statements acknowledging that he'd been warned that if he failed to appear for trial he would be giving up his right (1) to be present at trial; (2) to observe witnesses; (3) to testify on his own behalf; (4) to confer with his attorney during trial; (5) to address the judge at any sentencing. James's counsel also signed the portion of the form indicating that counsel had explained the relevant rights to James, and that counsel was satisfied that James fully understood those rights and had signed the acknowledgment freely, voluntarily, and without compulsion.

James appeared for the first morning of trial on September 9, 1999. However, after being instructed to return to the court at 2:15 that afternoon, James did not re-appear. When he failed to appear the following morning as well, the court conducted a "Parker hearing," see People v. Parker, 454 N.Y.S.2d 967 (1982), to determine whether to proceed to trial in James's absence. During the hearing, the court noted that it had verbally warned James of the consequences of his failure to appear in court for trial, and that James had signed the aforementioned acknowledgments. The court also heard the testimony of a paralegal in the District Attorney's office, who reported her efforts to locate James by calling (1) his home; (2) his reported place of employment; (3) the city, state, and federal inmate locators; (4) Central Booking for Brooklyn, Manhattan, and Queens; (5) five Brooklyn hospitals, two Manhattan hospitals, and two Queens hospitals; (6) the Missing Persons Bureau; (7) the Department of Immigration Deportation and Detention; (8) the New York City Apprehension Team; and (9) authorities in Chicago, where James may have had a fugitive warrant. None of her inquiries produced results. The court determined that James's failure to appear was voluntary, and that trial would proceed in his absence. See Parker Hrg. Tr. 51- 75.

After being tried in absentia, James was convicted of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree. On November 1, 1999, also in absentia, James was sentenced to six to twelve years in prison on the sale count, to run concurrently with a sentence of one year on the possession count.

James was arrested on April 29, 2002 in connection with an unrelated matter. At that time, he entered custody pursuant to the 1999 convictions and sentence.

B. The Procedural History

1. The Direct Appeal

On appeal to the New York Supreme Court, Appellate Division, Second Department, James's sole argument was that he was deprived of his right to be present at the 1999 trial. James argued that the investigation into his whereabouts by the District Attorney's office was not adequate to permit the court to try him in absentia. In particular, he argued that the prosecutor should have called individual police precincts in Brooklyn, including the precinct in which the courthouse was located. James also argued that the prosecutor should have called a number of large hospitals that were not called, and should have sent investigators to James's home and place of work in an attempt to locate him.

On June 20, 2005, the Appellate Division affirmed the conviction and sentence, noting that "under the circumstances, the defendant waived his right to be present at trial, and, in any event, forfeited that right by absconding shortly before the trial began." People v. James, 796 N.Y.S.2d 543, 544 (2d Dep't 2005).

On August 25, 2005, the New York Court of Appeals denied leave to appeal from the Appellate Division's decision. People v. James, 5 ...


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