PEOPLE v. JONES (2006)

Defendant appeals from a judgment convicting him upon a jury verdict of three counts of robbery in the second degree (Penal Law § 160.10 [1] ).   Contrary to the contention of defendant, County Court did not err in conducting the trial in his absence.   The record establishes that defendant had received the requisite warnings pursuant to People v. Parker, 57 N.Y.2d 136, 141, 454 N.Y.S.2d 967, 440 N.E.2d 1313 and had been told that the trial would commence on a certain date, and we thus conclude that defendant waived his right to be present (see People v. Lett, 12 A.D.3d 1076, 784 N.Y.S.2d 764, lv. denied 4 N.Y.3d 765, 792 N.Y.S.2d 9, 825 N.E.2d 141;  People v. Almonte, 210 A.D.2d 911, 620 N.Y.S.2d 661, lv. denied 85 N.Y.2d 859, 624 N.Y.S.2d 378, 648 N.E.2d 798;  People v. Daley, 207 A.D.2d 1000, 617 N.Y.S.2d 68, lv. denied 84 N.Y.2d 1010, 622 N.Y.S.2d 922, 647 N.E.2d 128).   The court determined that a postponement of the trial pending execution of the bench warrant was not likely to result in defendant's appearance within a reasonable period of time and thus, contrary to defendant's contention, the court did not err in issuing the bench warrant and proceeding with the trial (see People v. Diotte, 305 A.D.2d 721, 722, 759 N.Y.S.2d 244, lv. denied 100 N.Y.2d 580, 764 N.Y.S.2d 390, 796 N.E.2d 482;  People v. Shook, 294 A.D.2d 710, 711, 743 N.Y.S.2d 573, lv. denied 98 N.Y.2d 702, 747 N.Y.S.2d 421, 776 N.E.2d 10;   People v. Johnson, 262 A.D.2d 155, 156, 693 N.Y.S.2d 7, lv. denied 94 N.Y.2d 798, 700 N.Y.S.2d 432, 722 N.E.2d 512).   Indeed, defendant was not apprehended on the bench warrant until approximately eight months after the commencement of the trial.

Defendant failed to preserve for our review his further contention that he was deprived of a fair trial by the prosecutor's comments on summation (see People v. Dean, 28 A.D.3d 1118, 815 N.Y.S.2d 380;  People v. Lawrence, 28 A.D.3d 1123, 813 N.Y.S.2d 834), and that contention is lacking in merit in any event.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: