People v. Lamb

Casey, J.

Appeal from a judgment of the County Court of Albany County (Teresi, J.), rendered October 18, 1994, upon a verdict convicting defendant of two counts of the crime of driving while intoxicated.

Despite having received pretrial Parker warnings (see, People v Parker, 57 NY2d 136), and despite notice to defense counsel that defendant’s trial could occur on 24 hours’ notice, defendant traveled to Florida and was unable to return in time to appear on the morning of the first day of trial. After learning that defendant was en route and would appear later that morning or early in the afternoon, County Court proceeded with jury selection. Defense counsel did not object to the commencement of jury selection in defendant’s absence and defendant voiced no objection when he subsequently appeared for the remainder of the trial. Defendant now contends on appeal that he was deprived of his right to be present at trial when jury selection commenced in his absence. The People contend that he waived his right.

Defendant’s fundamental right to be personally present at trial, as guaranteed by CPL 260.20, extends to the impaneling of the jury (see, People v Antommarchi, 80 NY2d 247, 250). In cases where a defendant appears for trial and thereafter deliberately fails to return to court, the trial may continue in the defendant’s absence despite the lack of warnings that the trial could continue in his or her absence, because the defendant’s conduct unambiguously indicates a defiance of the processes of law, resulting in a forfeiture of the right to be present (see, People v Sanchez, 65 NY2d 436, 443-444). Before continuing the trial in a defendant’s absence, however, the trial court must make an inquiry and recite on the record the facts and reasons it relied upon in determining that the defendant’s failure to return to court after trial had commenced was deliberate (see, People v Brooks, 75 NY2d 898, 899, amended 76 NY2d 746).

A different analysis is required where, as here, a defendant fails to appear on the date scheduled for trial, for such conduct does not unambiguously indicate a defiance of the processes of law sufficient to effect a forfeiture (see, People v Sanchez, supra, at 444). In these circumstances, a waiver analysis is required and no waiver will be implied in the absence of any evidence that a defendant was ever apprised or otherwise aware that trial would proceed in his or her absence (see, People v Parker, supra, at 140-141). Defendant herein was warned about the consequences of his failure to appear for trial and defense counsel was advised that defendant’s trial could occur on 24 hours’ notice. In such circumstances, we are of the view that an implied waiver could be found on the basis of defendant’s voluntary decision to travel to Florida (see, People v English, 186 AD2d 1022, lv denied 81 NY2d 788). Waiver alone, however, is not sufficient to satisfy the mandate of CPL 260.20. "We consider it appropriate to emphasize that even after the court has determined that 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, the trial court must exercise its sound discretion upon consideration of all appropriate factors, including the possibility that 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 (see United States v Peterson, 524 F2d 167). In 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.” (People v Parker, supra, at 142.)

The record does not demonstrate that County Court considered any of the appropriate factors. Also absent from the record is the court’s reason for proceeding with jury selection despite being informed that defendant was en route and would appear later that morning or early in the afternoon. Thus, we conclude that even if defendant waived the right to be present at trial by failing to appear after receiving appropriate warnings, County Court’s failure to comply with the applicable post-waiver requirements (see, People v Parker, supra, at 142) constituted reversible error (see, People v Ramos, 207 AD2d 810; People v Smiley, 200 AD2d 777, 778; cf., People v McCullough, 209 AD2d 965). As the error concerns the fundamental right conferred by CPL 260.20, defendant’s failure to object is not fatal to his claim (compare, People v Dokes, 79 NY2d 656, 662, with People v Robles, 86 NY2d 763, 765; see, People v Antommarchi, 80 NY2d 247, 250, supra).

As a new trial is required, we will consider defendant’s claim that County Court erred in denying his suppression motion. According to defendant, all of the evidence seized as the result of the stop of the vehicle he was driving, including his statement and the results of a breathalyzer test, should have been suppressed. There is, however, ample evidence that the arresting officer stopped defendant’s vehicle because he observed the commission of a traffic offense (see, Vehicle and Traffic Law § 1128 [a] [which requires drivers to operate their vehicles within a single lane]) and the stop was not a mere pretext to investigate defendant for an unrelated matter (see, People v Ynoa, 223 AD2d 975, 977, lv denied 87 NY2d 1027).

The police officer’s observations of defendant’s physical condition justified defendant’s further detention for the limited purpose of investigating whether he was operating his vehicle under the influence of alcohol, including the inquiry which resulted in defendant’s statement made prior to his arrest (see, People v Noonan, 220 AD2d 811, 812-813). The prosecution met its burden of proving the legality of the police conduct and, therefore, defendant’s suppression motion was properly denied. We see no need to discuss the remainder of defendant’s arguments.

Mercure, J. P., Crew III and Carpinello, JJ., concur.