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COURT DID NOT CONSIDER THE APPROPRIATE FACTORS BEFORE PROCEEDING TO TRIAL IN DEFENDANT’S ABSENCE, DEFENDANT HAD MADE ALL PRIOR APPEARANCES AND NO EFFORT WAS MADE TO SECURE HIS PRESENCE AT THE TRIAL (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined County Court did not consider the appropriate factors before ordering the trial in defendant’s absence. Defendant had made all prior appearances and no effort was made to secure his presence:

Defendant had been present at all prior appearances, and there was no explanation for his failure to appear at trial. Defendant’s counsel stated that he had been calling defendant for a week without success. That morning, counsel had contacted local jails and hospitals looking for defendant. Despite counsel’s request for an adjournment, County Court concluded that defendant had been warned of the consequences of failing to appear and had voluntarily decided to be absent. The court then issued a bench warrant and immediately began the trial.

County Court abused its discretion in conducting the trial in defendant’s absence, as the record does not reflect that the court considered the appropriate factors. Nothing in the record indicates any difficulty in rescheduling the trial, fear that evidence or witnesses would be lost or that further efforts to locate defendant would be futile … . “Moreover, the fact that trial was commenced immediately after issuance of a bench warrant demonstrates only a minimal effort to locate defendant prior to trial” … . The court did not provide even a short adjournment for execution of the warrant or a determination as to whether defendant could be located within a reasonable time … . Because the court violated defendant’s right to be present at his trial, we reverse. People v Smith, 2019 NY Slip Op 01858, Third Dept 3-14-19

 

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