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THE LIMITED INQUIRY CONDUCTED BY THE JUDGE BEFORE HOLDING THE TRIAL IN DEFENDANT’S ABSENCE WAS INSUFFICIENT TO DEMONSTRATE DEFENDANT FORFEITED HIS RIGHT TO BE PRESENT AT THE TRIAL (SECOND DEPT).

The Second Department, reversing the judgment of conviction, determined the inquiry conducted by the judge when the defendant did not show up for trial was insufficient. The record did not establish defendant had deliberately forfeited his right to be present:

… [T]he court held a colloquy on the record, during which the court and defense counsel stated that the defendant had previously assured them of his intention to be present at trial. Defense counsel further informed the court that he did not know where the defendant was, and had looked for him in the courthouse. Defense counsel stated that he had been unable to reach the defendant that morning, but had received a message from the defendant’s mother indicating that the defendant was “on the way.” …  Following limited inquiry, the court commenced the trial in the defendant’s absence shortly after 12:00 p.m.

“‘A defendant’s right to be present at a criminal trial is encompassed within the confrontation clauses of the State and Federal Constitutions'” … . A defendant may “forfeit that right by deliberately absenting himself [or herself] from the proceedings” … . However, “‘before proceeding in the defendant’s absence, the court has an obligation to inquire into the surrounding circumstances to determine if the defendant’s absence is deliberate and to recite on the record the reasons for its finding,'” and “‘[t]he failure to conduct such an inquiry constitutes reversible error'” … . Furthermore, “[w]hile the right to be present may, under some circumstances, be waived by a defendant’s conduct, trial in absentia is not thereby automatically authorized” … . “Rather, the trial court must exercise its sound discretion upon consideration of all appropriate factors, including the possibility that [the] defendant could be located within a reasonable period of time, the difficulty of rescheduling trial and the chance that evidence will be lost or witnesses will disappear” … .

Here, the Supreme Court erred in conducting the trial in the defendant’s absence without sufficient inquiry into the circumstances surrounding the defendant’s absence, and the record is therefore insufficient to establish that the defendant deliberately absented himself from the proceedings and thereby forfeited his right to be present … . Furthermore, the record does not reflect that the court considered all of the appropriate factors before proceeding in the defendant’s absence … . People v Jorge, 2026 NY Slip Op 05811, Second Dept 10-7-26

Practice Point: Consult this decision for insight into the inquiry a judge must make before proceeding with a trial in the defendant’s absence.

 

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