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Trial Court’s Decision to Conduct Trial in Defendant’s Absence Without Consideration of the Factors Mandated for Consideration by the Court of Appeals Required Reversal

The Third Department reversed defendant’s conviction because the trial judge did not consider the appropriate factors before continuing with the trial without the defendant’s presence:

“A defendant’s right to be present in the courtroom during his or her trial is one of the most basic rights guaranteed by the Federal and New York Constitutions, and by statute” … . Even where, as here, “a defendant has waived the right to be present at trial by not appearing after being apprised of the right and the consequences of nonappearance, trial in absentia is not thereby automatically authorized”… . Rather, it must also appear from the record that the trial court considered “all appropriate factors” before proceeding in defendant’s absence, “including the possibility that defendant could be located within a reasonable period of time, the difficulty of rescheduling [the] trial and the chance that evidence will be lost or witnesses will disappear” … . As the Court of Appeals has instructed, “[i]n most cases the simple expedient of adjournment pending execution of a bench warrant could provide an alternative to trial in absentia unless, of course, the prosecution can demonstrate that such a course of action would be totally futile” … .

Here, the record fails to demonstrate that Supreme Court considered any of the appropriate factors. When defendant failed to appear on the morning that trial was scheduled to commence, defense counsel represented to the court that he had no information as to defendant’s whereabouts and requested an adjournment. Supreme Court declined to grant an adjournment, issued a bench warrant for defendant’s arrest and pronounced its decision to proceed immediately to trial. People v June, 105292, 3rd Dept 4-3-14 

 

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