dissents in a memorandum as follows: I disagree with the majority and would affirm. The fact that the prosecution consents to the retrial is not binding on this court. (People v St. Claire, 99 AD2d 982.)
People v Parker (57 NY2d 136), relied upon by the defense, is distinguishable. In Parker, the defendant told her lawyer, three days before trial, that she was seriously ill and would probably not make trial. When the defendant did not appear, the prosecution presented a witness who testified that the defendant had spoken, the month before, about leaving town. The witness also testified that she had no knowledge of the defendant’s illness. Relying on this, the court proceeded to trial.
The Court of Appeals reversed and remanded the case for a new trial on the basis that the defendant had never been apprised of the consequences of not appearing for trial. The court, however, made clear that the right to be present may be waived, and it may be waived by inference. This includes “conduct engaged in by the defendant after the trial has commenced.” (57 NY2d, at p 139.) The key issue, said the court, is whether the defendant “knowingly, voluntarily and intelligently relinquished his known right” (57 NY2d, at p 140). To do this, “the defendant must, at a minimum, be informed in some manner of the nature of the right to be present at trial and the consequences of failing to appear for trial” (supra, at p 141). All this means, according to the Court of Appeals, is that the defendant “simply be aware that the trial will proceed even though he or she fails to appear.” (Supra, at p 141.)
*620The court also noted that waiver may be implied as a matter of law. The example the court gives (supra, at p 142) is that of the “defendant [who] absented himself voluntarily after attending the opening of his trial.” (Citing Taylor v United States, 414 US 17, 20.) It also added (p 142) that “A similar waiver was implied from mere voluntary failure to appear for trial in the multiple defendant case of United States v Tortora (464 F2d 1202, cert den sub nom. Santoro v United States, 409 US 1063).”
In the instant case, the defendant’s conduct fulfills the Parker requirements. Defendant, a recent immigrant, had missed several appearances in a separate case. In the case at bar, the defendant arrived several hours late for a scheduled hearing, preventing the case from being moved into a trial part. Instead, the parties, who were ready for trial, scheduled the trial for the following Monday. When the People asked for bail, the Judge placed the defendant in the custody of his attorney. He also specifically told the defendant that “something will happen to your lawyer if you are not here and we will hold you [s¿c].” Despite this, the defendant did not appear for the trial. A search was made for the defendant at prisons, booking stations, hospitals and the address in court records. The defendant was not found. The court had also been given a new address for the defendant, which was searched during his trial the next day. The defendant still did not appear. The Judge then proceeded to try the defendant in absentia. Over one year later, the defendant appeared for sentencing.
The petitioner claims the conviction should be overturned. He states that he could not afford the transportation to get to the courthouse, and that a reasonable search would have found him. However, the police went to both addresses given by the defendant and found no one. Defendant had a history of missing trial dates. The defendant was warned of consequences if he did not appear and his lawyer acknowledged telling him of the seriousness of the charges.
The Parker court quoted Taylor (supra, p 20): “ ‘It seems equally incredible to us, as it did to the Court of Appeals, “that a defendant who flees from a courtroom in the midst of a trial — where judge, jury, witnesses, and lawyers are present and ready to continue — would not know that as a consequence the trial could continue in his absence” ’ [citation omitted].” (57 NY2d, at p 142.)
While Martinez did not attend the opening of his trial, he attended a hearing the Friday before it was to start. He was also told that his trial was set to begin. He chose to ignore this, without contacting his lawyer or the court. He has provided no *621reasonable excuse and should not now be permitted to overturn the verdict that resulted.