Muldoon, Getz & Reston

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Proceeding in court in the defendant’s absence
By: Gary Muldoon
Muldoon, Getz & Reston
Rochester, New York

When charged with a criminal offense, a defendant is expected to appear at all court proceedings, unless excused by the court, see People v. Dhanraj, 40 Misc 3d 250 (NY City Crim Ct 2013). If the defendant fails to appear, a bench warrant may be issued. CPL 1.20(3).

Trial

A defendant has the right to be present for trial. Where a defendant does not appear for trial, the trial may proceed without the defendant, but only if the judge has previously provided Parker warnings, and the judge makes a finding that defendant’s absence was willful, People v. Parker, 57 NY2d 136 (1982). A defendant who is absent at trial is deemed to have given decision-making authority to the attorney, People v. Cannady, 127 Misc 2d 783 (Sup 1985), judgment affirmed 138 AD2d 616 (2d Dept 1988).

Plea and sentencing

Where a defendant fails to appear for trial, the judge may also sentence the defendant in absentia, where the defendant was given Parker warnings, People v. Sanchez, 65 NY2d 436 (1985). But if none were given, sentencing in absentia is improper, People v. Corley, 67 NY2d 105 (1986).

A defendant has the right to be present at the time of plea and sentence. CPL 220.50(1), 340.20(2), 380.40. The defendant may accept an adjournment in contemplation of dismissal in absentia. A defendant may plead guilty by mail to a traffic infraction, other than to a third speeding offense in 18 months, VTL § 1805. A defendant may also plead guilty in absentia to a violation or misdemeanor, with court permission, CPL 220.50(1), 340.20. The defendant in writing may waive the right to be present for sentencing on a misdemeanor of violation, CPL 380.40(2). However, with a felony, both the guilty plea and sentencing require defendant’s personal appearance, CPL 220.50(1), 380.40(2).
A defendant has the right to be personally present at sentencing, People v. Carter, 51 AD3d 1139 (3d Dept 2008). If a defendant who has pleaded guilty fails to return for sentencing, the judge may impose a higher sentence than what had been promised, but only if Outley warnings were given, People v. Outley, 80 NY2d 702 (1993).

With an absentee defendant, the judge may also conduct an enhanced sentencing hearing. An absent defendant is deemed to have forfeited the right to dispute a persistent sentencing information, People v. Blaydes, 19 AD3d 935 (3d Dept 2005).

Upon proper notice to the defendant, a probation violation hearing may be conducted in the defendant’s absence, People v. Severino, 44 AD3d 1077 (2d Dept 2007).

SORA hearing

A defendant has the right to be present at a SORA hearing, People v. Distaffen, 71 AD3d 1597 (4th Dept 2010).

© 2014 by Gary Muldoon