Opinion
December 30, 1992
Appeal from the Onondaga County Court, Mulroy, J.
Present — Denman, P.J., Pine, Balio, Fallon and Davis, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from her convictions for criminal sale and possession of a controlled substance, defendant's primary contention is that the court erred in trying her in absentia. She argues that she cannot be deemed to have waived her right to be present at trial because, although she repeatedly and clearly was apprised that trial would proceed if she failed to appear (see, People v Parker, 57 N.Y.2d 136, 140-141), she was not informed that trial would commence on a specific date (see, People v Rivers, 163 A.D.2d 812, 813). Where, as here, the defendant absconds before a trial date has been set after repeatedly being informed of the Parker warnings, "the failure to actually notify defendant of the date that [her] trial was to begin does not constitute a deprivation of [her] right to be present at trial" (People v Colon, 180 A.D.2d 876, 877, citing People v Delvalle, 167 A.D.2d 661, lv denied 77 N.Y.2d 837). To hold otherwise would allow a defendant to thwart the criminal prosecution indefinitely so long as she absconds before a trial date has been set. Insofar as our decision in People v Rivers (supra) conflicts with our holding herein, it is no longer to be followed.
Additionally, defendant contends that in executing the sentence previously imposed on defendant in absentia, the court was required to order an updated presentence investigation report. That contention is without merit (see, People v Tejada, 171 A.D.2d 585, 586-587).