Opinion
June 13, 1991
Appeal from the Supreme Court, Bronx County (Lawrence J. Tonetti, J.).
At the close of the People's case, the trial was adjourned for four days. Defendant failed to appear for trial on the adjourned date, and remained absent throughout the remainder of the trial. The trial court's continuation of the trial in defendant's absence was not an abuse of discretion. The court and the People made reasonable and unsuccessful efforts to determine defendant's whereabouts by checking at his home, and the city's morgue, hospitals and jails. Thus, the court properly concluded that defendant had voluntarily absented himself and, thereby, forfeited his right to be present at trial. (People v Sanchez, 65 N.Y.2d 436; People v Jones, 163 A.D.2d 203, lv denied 76 N.Y.2d 987.) Under these circumstances, it is irrelevant that the court did not give defendant Parker warnings, pursuant to People v Parker ( 57 N.Y.2d 136; People v Sanchez, supra, at 443). Furthermore, the court committed no abuse of discretion in summarily denying defendant's motion, pursuant to CPL 330.30 (1), to set aside the verdict on the ground that he had been tried in absentia. Defendant's mother's affidavit, in support of the motion, stated that defendant was ill on the evening before the adjourned date and that he was hospitalized three days later under the name of one Eduardo Rivera. These factual allegations were insufficient to require a hearing because they did not account for defendant's absence on the adjourned date and the subsequent dates (People v Jones, supra).
Defendant's challenge to the court's marshaling of the evidence, pursuant to CPL 300.10 (2), was not preserved for review. (CPL 470.05; People v Sanchez, 136 A.D.2d 751, lv denied 75 N.Y.2d 817.) Were we to consider it, we would find that the court's charge was sufficiently balanced and would note that CPL 300.10 (2) neither requires the court to marshal the evidence nor explain all the contentions of the parties or inconsistencies alleged (People v Saunders, 64 N.Y.2d 665).
Concur — Murphy, P.J., Wallach, Asch, Kassal and Smith, JJ.