Opinion
June 26, 1995
Appeal from the Supreme Court, Kings County (Lipp, J.).
Ordered that the judgment is affirmed.
In addition to having been given Parker warnings (People v Parker, 57 N.Y.2d 136), the defendant was admonished by the court on the second day of trial that his continued absences and late arrivals would no longer be tolerated. At approximately 11:50 A.M. on the third day of trial, the court announced that it would hold a "very short" recess between summations and charge, during which no one should "leave the immediate vicinity of the courtroom". When the proceedings resumed a few minutes later, the defendant did not reappear (indeed, he was only returned on a warrant more than three months later). The court had the hallways and bathrooms searched, and "called around" the courthouse to try to locate the defendant — but without success. In directing the defense counsel to proceed at about 12:20 P.M., the court placed on the record, out of the presence of the jury, that it had announced only a "brief" recess; that this was "about the ninth time in [a] row [that] [the defendant] doesn't come on time"; and that the defendant's absence was entirely unexplained. Subsequently, at around 4:40 P.M. while the jury was deliberating after the court's final charge, the court took testimony from a paralegal as to the efforts made by the Kings County District Attorney's Office to locate the defendant. These efforts included addressing inquiries to various local hospitals, morgues, Brooklyn Central Booking, Missing Persons, and the defendant's mother. Following this hearing, the court put on the record its findings regarding the defendant's absence, which it declared — confirming its original impression — to be voluntary.
Although a defendant has a fundamental right to be present at all material stages of his trial (see, e.g., People v. Williams, 186 A.D.2d 161; see generally, People v. Dokes, 79 N.Y.2d 656; People v. Velasco, 77 N.Y.2d 469; People v. Carroll, 196 A.D.2d 546, lv denied 82 N.Y.2d 848), he may forfeit that right by deliberately absenting himself from the proceedings (see, People v. Brooks, 75 N.Y.2d 898; People v. Sanchez, 65 N.Y.2d 436). While normally, before continuing in a defendant's absence, the court should make an inquiry and recite on the record the facts and reasons it is relying upon in determining that the defendant's absence was deliberate (see, People v. Brooks, supra; People v Aguilar, 177 A.D.2d 197), where, as here, the deliberate character of the defendant's absence is apparent on its face (cf., People v. Williams, supra; People v. Amato, 172 A.D.2d 545), the court's failure to immediately hold a full hearing does not necessarily constitute reversible error (see, People v. Febo, 210 A.D.2d 251). We note that this is not a case where, for example, the defendant was delayed, perhaps by traffic, in arriving at court in the morning, but is rather one where the defendant, who had a history of being late or absent, disappeared during a brief mid-day break. After scouring the courthouse for him, the court put on the record its reasonable determination that the defendant's absence was deliberate; and approximately four hours later it conducted a full-fledged hearing, the results of which corroborated its initial ruling. Under these circumstances, the defendant may not be heard to complain that he was deprived of his right to be present during a material stage of his trial (see, e.g., People v. McGrew, 198 A.D.2d 6).
The defendant's remaining contentions are either unpreserved for appellate review or without merit. Miller, J.P., Thompson, Friedmann and Florio, JJ., concur.