143 A.D.2d 1066 | N.Y. App. Div. | 1988
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Clabby, J.), rendered November 14, 1984, convicting him of attempted robbery in the second degree, after a nonjury trial, and imposing sentence.
Ordered that the case is remitted to the Supreme Court, Queens County, for a hearing on that branch of the defendant’s omnibus motion which was to suppress identification testimony, and the appeal is held in abeyance in the interim; the Supreme Court shall file its report with all convenient speed.
A defendant has a right to be present at all material stages of his trial (see, People v Mehmedi, 69 NY2d 759, rearg denied 69 NY2d 985; People v Parker, 57 NY2d 136). This includes pretrial hearings (see, People v Anderson, 16 NY2d 282; People v Gilbert, 96 AD2d 648; People v Burts, 64 AD2d 283). A defendant can expressly waive his right to be present (see, People v Sanchez, 65 NY2d 436, 443-444; People v Parker, supra) or his waiver can be implied by certain conduct on his part (see, People v Sanchez, supra; People v Parker, supra), as long as he has been advised by the court of the consequences which can occur if he fails to appear (see, People v Sanchez, supra; People v Parker, supra). Even where a court has not warned a defendant that a hearing or trial will continue in his absence he may forfeit his right to be present where he is told that a hearing is about to begin and then deliberately fails to reappear in court. It can be implied as a matter of law that the defendant forfeited his right to be present at the hearing (see, Taylor v United States, 414 US 17; People v Sanchez, supra; People v Ellerbe, 115 AD2d 614, lv denied 67 NY2d 761).
However, although a defendant may waive or forfeit his right to be present he does not as a consequence of his actions waive his right to a hearing or a trial (cf., People v Parker, supra; People v Sanchez, supra). His waiver or forfeiture merely allows the court to try him in absentia (see, Taylor v United States, supra; People v Sanchez, supra; People v Parker, supra). It was therefore error for the trial court to conclude that the defendant’s failure to appear in court constituted a waiver of his right to a hearing. The case must therefore be remitted to Supreme Court so that a suppression hearing may