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PEOPLE v. DIAZ

7 N.Y.3d 831 (2006)

857 N.E.2d 47

823 N.Y.S.2d 752

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSE DIAZ, Appellant.

Court of Appeals of New York.

Decided September 19, 2006.

Attorney(s) appearing for the Case

Legal Aid Society, New York City (Cheryl P. Williams and Steven Banks of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York City (Hilary Hassler of counsel), for respondent.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO and READ concur; Judge R.S. SMITH dissents and votes to deny the motion to dismiss in an opinion.

OPINION OF THE COURT

MEMORANDUM.

The appeal should be dismissed without prejudice. As stated in People v Genet (59 N.Y. 80, 81 [1874]), "[t]he whole theory of criminal proceedings is based upon the idea of the defendant being in the power, and under the control of the court, in his person." Thus, this Court has consistently dismissed appeals where a defendant has absconded (see People v Smith,

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