The People of the State of New York, Respondent, v. Matthew John, Appellant. (2024)

ORDERED that the judgment of conviction is reversed, on the law, the fine, if paid, is remitted, and the matter is remitted to the Justice Court for a new trial.

Defendant was charged with speeding (Vehicle and Traffic Law § 1180 [d]) in that he was allegedly traveling at 80 miles per hour in a 30 miles per hour zone. He retained an attorney who entered a not guilty plea. On the trial date, when neither defendant nor his attorney appeared, a trial in absentia was held at which the complainant police officer testified, and defendant was found guilty.

Where a defendant fails to appear at a trial involving a prosecution of an offense and there is no basis to conclude that the defendant was aware that the trial could proceed in his or her absence, before proceeding, the court should make an inquiry to determine whether the absence was deliberate and recite on the record the facts and the reasons it relied upon in making that determination (see People v Redzeposki, 7 NY3d 725, 726 [2006]; People v Brooks, 75 NY2d 898, 899 [1990]; People v Parker, 57 NY2d 136, 141-142 [1982]; People v Smith, 73 Misc 3d 136[A], 2021 NY Slip Op 51071[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]; People v Lobato, 63 Misc 3d 137[A], 2019 NY Slip Op 50527[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v Palmer, 63 Misc 3d 137[A], 2019 NY Slip Op 50526[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]). The failure to conduct such an inquiry constitutes reversible error (see Redzeposki, 7 NY3d at 726; Brooks, 75 NY2d at 899; People v Ramos, 179 AD3d 842 [2020]; People v Amato, 172 AD2d 545 [1991]; Lobato, 2019 NY Slip Op 50527[U]; Palmer, 2019 NY Slip Op 50526[U]).

Here, no inquiry was made by the court, there was no effort to attempt to locate defendant, and the court failed to consider the difficulty of rescheduling the trial. Under the circumstances, it was error for the Justice Court to proceed with defendant's trial in his absence and, consequently, the conviction must be reversed and a new trial ordered (see Smith, 2021 NY Slip Op 51071[U]; Lobato, 2019 NY Slip Op 50527[U]; Palmer, 2019 NY Slip Op 50526[U]).

Accordingly, the judgment of conviction is reversed and the matter is remitted to the Justice Court for a new trial.

DRISCOLL, J.P., McCORMACK and GOLDBERG-VELAZQUEZ, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: July 25, 2024