voluntary waiver in New York

2000The defendant’s statements to law enforcement authorities were made after a voluntary waiver of his Miranda rights (see, People v Prater, 258 AD2d 600 ; Miranda v Arizona, 384 US 436 ).

1984This appeal concerns the admissibility of a confession which, although given after Miranda warnings (see Miranda v Arizona, 384 US 436 ), was suppressed because the defendant’s voluntary waiver of counsel was not made in the presence of an attorney.

1984However, a voluntary waiver may be implied if the defendant absents himself after his trial commences (see, e.g., Taylor v United States, 414 US 17 ; People v Parker, supra; People v Epps, 37 NY2d 343 , cert den 423 US 999 ; People v Johnson, 37 NY2d 778 ; People v Byrnes, 33 NY2d 343 ; People v Rivera, supra; cf. People v Scott, supra), or if the defendant voluntarily fails to appear in a multiple defendant proceeding (see United States v Tortora, 464 F2d 1202, cert den sub nom.

1982In contrast, here, defendant attended the first four days of his trial (cf. Taylor v United States, 414 US 17 ) and, after his arrest, was in repeated contact with his attorney, who continued to represent him for the balance of the trial.

1984However, a voluntary waiver may be implied if the defendant absents himself after his trial commences (see, e.g., Taylor v United States, 414 US 17 ; People v Parker, supra; People v Epps, 37 NY2d 343 , cert den 423 US 999 ; People v Johnson, 37 NY2d 778 ; People v Byrnes, 33 NY2d 343 ; People v Rivera, supra; cf. People v Scott, supra), or if the defendant voluntarily fails to appear in a multiple defendant proceeding (see United States v Tortora, 464 F2d 1202, cert den sub nom.

1978"The key issue is whether this defendant knowingly, voluntarily and intelligently relinquished this known right (Johnson v Zerbst, 304 US 458, 464 ).” (People v Epps, supra, p 350 .) It has been held in People v Aiken ( 54 AD2d 937 , affd 45 NY2d 394 ), citing the Epps case, that a defendant who absconds after the second day of trial following the selection of the ninth juror voluntarily waives his right to be present at trial and that the trial may proceed to a verdict in his absence.

1984However, a voluntary waiver may be implied if the defendant absents himself after his trial commences (see, e.g., Taylor v United States, 414 US 17 ; People v Parker, supra; People v Epps, 37 NY2d 343 , cert den 423 US 999 ; People v Johnson, 37 NY2d 778 ; People v Byrnes, 33 NY2d 343 ; People v Rivera, supra; cf. People v Scott, supra), or if the defendant voluntarily fails to appear in a multiple defendant proceeding (see United States v Tortora, 464 F2d 1202, cert den sub nom.

1982This case is distinguishable from People v Parker ( 57 NY2d 136 ), in which the court held that the record did not establish a voluntary waiver where there was no showing that defendant, who disappeared prior to trial and never communicated with her attorney, was aware that the trial would proceed in her absence.

1982In our view, the People met their burden of establishing a voluntary waiver beyond a reasonable doubt (see People v Whitehurst, 25 NY2d 389 ).

1975Even assuming that reasonable suspicion justifying this stop was present, I am of the view that the People did not sustain their heavy burden of proving a voluntary waiver of defendant’s Fourth Amendment rights (People v Whitehurst, 25 NY2d 389, 391 ).

2022Hence, defendant's statutory speedy trial claim is precluded by his valid appeal waiver ( see People v Votaw , 190 AD3d at 1164 ).

2021Thus, the appellant's verbal "yes" responses to the Miranda warnings in no way demonstrated his comprehension of the Miranda rights or a voluntary waiver of them ( see People v Patillo , 185 AD3d at 50 ).

2018The imposition of such a condition is permissible ( see People v Lopez , 6 NY3d 248, 255 ; People v Singh , 158 AD3d 824 , 825).

2010No. 1, Hempstead, 76 AD2d 837 [1980], affd 55 NY2d 648 [1981]; Whitehead v State of N.Y., Dept. of Mental Hygiene, 71 AD2d 653 [1979], affd 51 NY2d 781 [1980]).

2010No. 1, Hempstead, 76 AD2d 837 [1980], affd 55 NY2d 648 [1981]; Whitehead v State of N.Y., Dept. of Mental Hygiene, 71 AD2d 653 [1979], affd 51 NY2d 781 [1980]).

2010No. 1, Hempstead, 76 AD2d 837 [1980], affd 55 NY2d 648 [1981]; Whitehead v State of N.Y., Dept. of Mental Hygiene, 71 AD2d 653 [1979], affd 51 NY2d 781 [1980]).

2010Auth., 42 NY2d 162 [1977]), when considering whether a voluntary waiver of rights has occurred, the focus is “upon the existence of a bona fide agreement by which the employee received a desired benefit in return for the waiver, the complete absence of duress, coercion or bad faith and the open and knowing nature of the waiver’s execution” (Matter of American Broadcasting Cos. v Roberts, 61 NY2d 244, 249-250 [1984]; see Matter of Juul v Board of Educ. of Hempstead School Dist.

2010No. 1, Hempstead, 76 AD2d 837 [1980], affd 55 NY2d 648 [1981]; Whitehead v State of N.Y., Dept. of Mental Hygiene, 71 AD2d 653 [1979], affd 51 NY2d 781 [1980]).

2007Defendant’s unexplained absence, in the face of the Parker admonishment that he received and unequivocally acknowledged, constitutes a voluntary waiver of his right to be present at his resentencing (see People v Rosas, 34 AD3d 605 [2006]).

2006Initially, defendant’s challenge to the factual sufficiency of the plea allocution is precluded by the voluntary waiver of his right to appeal (see People v Alexander, 31 AD3d 885, 886 [2006]; People v Feller, 25 AD3d 881 [2006], lv denied 6 NY3d 812 [2006]).

2006In addition, his failure to move to withdraw the plea or vacate the judgment of conviction renders the issue as to the voluntariness of his plea unpreserved for our review (see People v Bennett, 30 AD3d 631, 631 [2006], lv denied 7 NY3d 809 [2006]; People v Jones, 30 AD3d 633, 633 [2006], lv denied 7 NY3d 849 [2006]) and the exception to the preservation rule is not applicable inasmuch as defendant made no statements inconsistent with his guilt (see People v Campbell, 29 AD3d 1083, 1083-1084 [2006], lv denied 7 NY3d 786 [2006]; People v Evans, 27 AD3d 905, 906-907 [2006], lv denied 6 NY3d 847

2006People v Sharlow, 12 AD3d 724, 725 [2004], lv denied 4 NY3d 748 [2004]; People v Clough, 306 AD2d 556, 557 [2003], lv denied 100 NY2d 593 [2003]; People v Harris, 233 AD2d 959 , 959 [1996], lv denied 89 NY2d 1094 [1997]).

2006People v Sharlow, 12 AD3d 724, 725 [2004], lv denied 4 NY3d 748 [2004]; People v Clough, 306 AD2d 556, 557 [2003], lv denied 100 NY2d 593 [2003]; People v Harris, 233 AD2d 959 , 959 [1996], lv denied 89 NY2d 1094 [1997]).

2006Initially, defendant’s challenge to the factual sufficiency of the plea allocution is precluded by the voluntary waiver of his right to appeal (see People v Alexander, 31 AD3d 885, 886 [2006]; People v Feller, 25 AD3d 881 [2006], lv denied 6 NY3d 812 [2006]).