Opinion
May 11, 1990
Appeal from the Monroe County Court, Celli, J.
Present — Dillon, P.J., Green, Pine, Lawton and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends on appeal that the court erred in conducting his trial in absentia. We disagree. On January 15, 1988, the court informed defendant that "the matter will be started on the 19th for trial" and that "if you're not here on the 19th * * * the law says that we can start without you." The court repeated that "[t]he trial date is the 19th" and again asserted that "we'll be starting on the 19th". Defendant acknowledged that he knew that the trial would start on the 19th and asserted: "I'll be here."
Four days later, on the morning of January 19, the case was called for trial. Defendant's counsel, codefendant and her counsel, and the prosecutor were present, but defendant did not appear. The court initially recessed until 11:00 A.M. and later extended the recess until 2:00 P.M. Defendant still did not appear and the court denied counsel's request for a further continuance. The court noted that defendant had been informed of the trial date, that all other participants had been "ready this morning to start the trial" and that the court had waited until 2:00 P.M. for defendant to appear. The court ruled that defendant was "fully aware" that the trial would proceed in his absence and concluded that defendant waived his right to be present. After four days of trial, the jury found defendant and codefendant guilty of one count each of criminal sale of a controlled substance in the first degree and criminal possession of a controlled substance in the first degree.
A defendant has a fundamental right to be present at all material stages of a trial (People v. Mehmedi, 69 N.Y.2d 759, 760; People v. Ciaccio, 47 N.Y.2d 431, 436). The right is encompassed within the Confrontation Clauses of the State and Federal Constitutions (NY Const, art I, § 6; US Const 6th Amend), and the Criminal Procedure Law (CPL 260.20, 340.50 Crim. Proc.). Since the right is of a fundamental and constitutional nature, a waiver of the right, to be effective, must be voluntary, knowing and intelligent (People v. Smith, 68 N.Y.2d 725; People v. Parker, 57 N.Y.2d 136, 140; People v. Epps, 37 N.Y.2d 343, 350, cert denied 423 U.S. 999). The record must demonstrate that the defendant was made aware that the trial would proceed even if defendant failed to appear (People v. Parker, supra, at 141).
Here, the court's determination that defendant waived his right to be present at trial is fully supported in the record. Defendant was unequivocally instructed that the trial would commence even if defendant failed to appear. Consequently, defendant's nonappearance constituted a waiver of his right to be present at trial.
We reject defendant's argument that even if he waived his right to be present at trial, the court abused its discretion in conducting the trial in absentia (see, People v. Parker, 57 N.Y.2d 136, 142, supra). The court earlier had determined that the failure of defendant to appear on previously scheduled court dates had frustrated the disposition of the charges against both defendant and codefendant. By delaying the start of the trial until 2:00 P.M., the court gave ample opportunity to defendant to be present or for counsel to offer a reasonable explanation for his absence. No justification has ever been offered for defendant's failure to appear at trial (see, People v. Smith, 148 A.D.2d 1007, 1008, lv denied 74 N.Y.2d 747). Given the additional considerations attendant upon a multiple defendant trial (see, United States v. Tortora, 464 F.2d 1202, 1210, cert denied sub nom. Santoro v. United States, 409 U.S. 1063), the court properly exercised its discretion to commence the trial of both defendants even though defendant was not present.
Finally, since the evidence did not support an agency defense, the prosecutor was not required to instruct the Grand Jury on the law applicable to that defense (see, People v. Valles, 62 N.Y.2d 36; People v. Beverly, 148 A.D.2d 922, lv denied 74 N.Y.2d 661).