| People v June |
| 2014 NY Slip Op 02353 [116 AD3d 1094] |
| April 3, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vDiamon June, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the Supreme Court (Lamont, J.), renderedJuly 17, 2012 in Albany County, upon a verdict convicting defendant of the crime ofrobbery in the second degree (two counts).
Following his indictment, defendant signed a Parker admonishment and wasreleased on bail. Various proceedings were thereafter conducted and, at a courtappearance held three days before the trial was scheduled to commence, defendant wasagain informed that, if he failed to appear, trial could proceed in his absence. When hedid not appear on the morning of trial, Supreme Court concluded that defendant waivedhis right to be present at trial and proceeded to jury selection. Defendant was thereaftertried in absentia and found guilty of two counts of robbery in the second degree. Afterunsuccessfully moving to set aside the verdict on the ground that Supreme Court shouldnot have proceeded with the trial in absentia, defendant was sentenced to a term ofimprisonment.
Of the various arguments raised by defendant on appeal, we find merit to his claimthat Supreme Court erred in conducting the trial in his absence. "A defendant's right to bepresent in the courtroom during his or her trial is one of the most basic rights guaranteedby the Federal and New York Constitutions, and by statute" (People v Mitchell, 69 AD3d761, 761 [2010], lv denied 14 NY3d 803 [2010] [citations omitted];see US Const 6th Amend; NY Const, art I, § 6; CPL [*2]260.20, 340.50). Even where, as here, "a defendant haswaived the right to be present at trial by not appearing after being apprised of the rightand the consequences of nonappearance, trial in absentia is not therebyautomatically authorized" (People v Parker, 57 NY2d 136, 142 [1982]; seePeople v Sumner, 254 AD2d 537, 537 [1998]; People v Lamb, 235 AD2d829, 830 [1997]). Rather, it must also appear from the record that the trial courtconsidered "all appropriate factors" before proceeding in defendant's absence, "includingthe possibility that defendant could be located within a reasonable period of time, thedifficulty of rescheduling [the] trial and the chance that evidence will be lost or witnesseswill disappear" (People v Parker, 57 NY2d at 142; see People v Major, 68 AD3d1244, 1245 [2009], lv denied 14 NY3d 772 [2010]; People vSumner, 254 AD2d at 537; see also People v Brooks, 75 NY2d 898, 899[1990], amended 76 NY2d 746 [1990]). As the Court of Appeals has instructed,"[i]n most cases the simple expedient of adjournment pending execution of a benchwarrant could provide an alternative to trial in absentia unless, of course, theprosecution can demonstrate that such a course of action would be totally futile"(People v Parker, 57 NY2d at 142).
Here, the record fails to demonstrate that Supreme Court considered any of theappropriate factors. When defendant failed to appear on the morning that trial wasscheduled to commence, defense counsel represented to the court that he had noinformation as to defendant's whereabouts and requested an adjournment. Supreme Courtdeclined to grant an adjournment, issued a bench warrant for defendant's arrest andpronounced its decision to proceed immediately to trial. In so doing, the court noted onlythat defendant had been warned that the trial would go forward in his absence if he failedto appear, and that to delay the proceeding "would be tantamount to tearing up theParker admonishment."[FN*]There is no indication that Supreme Court considered the likelihood that defendant couldbe located within a reasonable period of time or any difficulties attendant to delaying thetrial pending execution of the bench warrant (see People v Edmonds, 151 AD2d829, 830-831 [1989]; People v Thompson, 94 AD2d 898, 899 [1983];compare People v Major, 68 AD3d at 1245; People v Lakatosz, 59 AD3d 813, 815 [2009], lvdenied 12 NY3d 917 [2009]). Notably, defendant had timely appeared for everyprior court proceeding (see People v Smiley, 200 AD2d 777, 778 [1994]; compare People v Quinones,74 AD3d 494, 494 [2010], lv denied 15 NY3d 808 [2010]; People vWebb, 236 AD2d 872, 872-873 [1997], lv denied 90 NY2d 865 [1997];People v Almonte, 210 AD2d 911, 911-912 [1994], lv denied 85 NY2d859 [1995]), and "the fact that trial was commenced immediately after issuance of abench warrant demonstrates only a minimal effort to locate defendant prior to trial"(People v Thompson, 94 AD2d at 899; see People v Carter, 51 AD3d 1139, 1140-1141 [2008][finding that County Court improperly sentenced the defendant in absentia just one hourafter the time set for his appearance without first taking any reasonable measures tosecure his attendance]; compare People v Major, 68 AD3d at 1245; People vJohnson, 262 AD2d 155, 156 [1999], lv denied 94 NY2d 798 [1999];People v Sumner, 254 AD2d at 537; People v Delvalle, 167 AD2d 661,661 [1990], lv denied 77 NY2d 837 [1991]). Under these circumstances, it waserror for Supreme Court to proceed with defendant's trial, and his convictions musttherefore be reversed.[*3]
Stein, McCarthy and Rose, JJ., concur. Orderedthat the judgment is reversed, on the law, and matter remitted to the Supreme Court for anew trial.
Footnote *: The parties wereinstructed to appear at 9:30 a.m. The aforementioned colloquy began at 10:41 a.m. At10:47 a.m., Supreme Court rendered its decision to proceed with the trial in defendant'sabsence and, after resolving several pretrial issues and a 14-minute recess, jury selectionbegan at 11:38 a.m.