Opinion
No. KA 10-02041.
September 30, 2011.
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; § 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 NY2d 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 NY2d 898, 899, mot to amend remittitur granted 76 NY2d 746; see People v Dugan, 210 AD2d 971, 972, lv denied 85 NY2d 972). In light of our conclusion that the court's error requires reversal ( see Dugan, 210 AD2d 971), we need not address defendant's remaining contentions.
MULDOON GETZ, ROCHESTER (GARY MULDOON OF COUNSEL), FOR DEFENDANT-APPELLANT.
THOMAS E. MORAN, DISTRICT ATTORNEY, GENESEO (ERIC R. SCHIENER OF COUNSEL), FOR RESPONDENT.
Present — Centra, J.P., Peradotto, Carni, Green and Gorski, JJ.