THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. APPEAL NO (2011)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted.

Memorandum:  Defendant appeals from two judgments convicting him upon a jury verdict of, inter alia, felony driving while intoxicated (Vehicle and Traffic Law § 1192[3];  § 1193[1][c] [former (ii) ] ) and aggravated unlicensed operation of a motor vehicle in the first degree (§ 511[3] ).   We agree with defendant that County Court erred in conducting the trial in his absence.   Even assuming, arguendo, that the court advised defendant of the scheduled trial date and warned him that the trial would proceed in his absence if he failed to appear (see generally People v. Parker, 57 N.Y.2d 136, 141), we conclude that the court failed to inquire into defendant's absence and to recite “on the record the facts and reasons it relied upon in determining that defendant's absence was deliberate” (People v. Brooks, 75 N.Y.2d 898, 899, mot to amend remittitur granted 76 N.Y.2d 746;  see People v. Dugan, 210 A.D.2d 971, 972, lv denied 85 N.Y.2d 972).   In light of our conclusion that the court's error requires reversal (see Dugan, 210 A.D.2d 971), we need not address defendant's remaining contentions.

Patricia L. Morgan

Clerk of the Court