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Issues In NY Criminal Law--Vol. 3, #10©

Issue: Parker Warnings

Basic to a criminal defendant's rights is that of a fair and public trial. This includes the defendant's right to be present. Such a right, however, can be waived. The leading case in New York is People v Parker, 57 NY2d 136, 454 NYS2d 967 (1982).

Parker involved a trial in absentia. The defendant was advised by the trial judge of the trial date but failed to appear. The Court of Appeals found the record insufficient to establish waiver. It found that a constitutional waiver analysis (requiring knowing, voluntary and intelligent decision) was appropriate, rather than a forfeiture analysis (which occurs by operation of law without regard to the defendant's state of mind). Missing in the Parker record was evidence that the defendant was informed that the trial would proceed if she did not appear.

Even if warnings are placed on the record, the Court of Appeals emphasized that trial in absentia is not automatically authorized.

The trial court must consider factors including:

1. The possibility that defendant could be located within a reasonable period of time.

2. The difficulty of rescheduling trial.

3. A chance that evidence will be lost or that the witnesses will disappear.

In addition to felonies, Parker applies to misdemeanor charges, pretrial suppression hearings, sentencing, as well as juvenile delinquency cases. Handling a Criminal Case in New York (2001-2002 edition), 18:19.

Defense counsel's failure to object to proceeding in the defendant's absence does not preclude raising the issue on appeal.

One exception to Parker occurs with multi-defendant trials. There, the "public interest outweighs that of the voluntarily absent defendant." People v Porter, 113 AD2d 814, 493 NYS2d 492 (2d Dept 1985).

A different rule applies where a defendant deliberately leaves after trial has begun. In such a situation, it is unnecessary to show that the defendant knew that trial would continue in his absence. People v Sanchez, 65 NY2d 436, 492 NYS2d 577 (1985). The court must still make an inquiry to determine whether the defendant's absence is deliberate. People v Green, 216 AD2d 581, 629 NYS2d 53 (2d Dept 1995).

If the defendant is absent during a jury trial, the defense may request an instruction that the jury not speculate on the reason for the absence. CJI 4.22.

It is a bit embarrassing to have been concerned with the human problem all one's life and find at the end that one has no more to offer by way of advice than "try to be a little kinder." Aldous Huxley


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