People v. Martinez , 108 A.D.2d 618 ( 1985 )

Judgment, Supreme Court, New York County (Scott, J.), rendered April 21, 1982, after a jury trial held in the absence of the defendant, convicting him of criminal possession of a weapon in the third degree (Penal Law § 265.02 [4]), reversed, on the law, and the matter remanded for a new trial.

On October 6, 1980 defendant and another individual were detained by security personnel of a New York City department store on suspicion of shoplifting. A loaded weapon was found on the person of the defendant. On October 14,1980 he was indicted for criminal possession of a weapon in the third degree.

Defendant, a recent Cuban immigrant, failed to appear for a calendar call on December 1, 1980. A bench warrant was issued but stayed upon defense counsel’s representation that the wife of the defendant had informed him that defendant was too ill to attend. Defendant again failed to appear on December 3, 1980. Subsequently, defendant appeared voluntarily on December 11, 1980, explaining to the court that his absence on December 3 was caused by his lack of money for transportation. The matter was ready for trial on Friday, January 30, 1981. On that date, however, defendant did not appear until 11:30 a.m., necessitating a change of trial parts. On the afternoon of January 30, the case was assigned to Part 33. Because of the lateness of the day, the court determined to proceed with the trial on Monday, February 2. The People asked that bail be reinstated, but the court paroled defendant to the custody of his attorney. The court instructed counsel to “have him [defendant] here on Monday morning at ten o’clock.” The court also admonished the defendant that, “Something will happen to your lawyer if you are not here and we will hold you.” Defendant failed to appear as ordered. After an investigation established to the court’s satisfaction that the defendant was not involuntarily detained elsewhere and had absented himself of his own accord, defendant was tried in absentia and found guilty.

Subsequent to the trial and defendant’s sentencing on April 21,1982, the Court of Appeals ruled in People v Parker (57 NY2d 136) that a finding that a criminal defendant has received actual notice of the date for trial and has nevertheless voluntarily failed to appear is not sufficient, as a matter of law, to permit the trial court to proceed to try the defendant in absentia. “In order to effect a voluntary, knowing and intelligent waiver, the defendant must, at a minimum, be informed in some manner of the nature of the right to be present at trial and the consequences of failing to appear for trial [citations omitted]. This, of course, in turn requires that defendant simply be aware that trial will proceed even though he or she fails to appear.” (People v Parker, supra, at p 141.) A review of the record indicates that at no time was defendant, who has a history of mental illness, made aware that his failure to appear in court on February 2, 1981 could result in a trial being held in his absence. Nor does defendant’s conduct represent a clear expression of a desire not to be present at trial under any circumstances (see generally, People v Johnson, 37 NY2d 778).

Accordingly, defendant’s conviction should be reversed and the matter remanded for a new trial. Commendably, the People concur in this result. Concur — Murphy, P. J., Sullivan and Asch, JJ.