Opinion
October 2, 1998
Appeal from Judgment of Monroe County Court, Connell, J. — Absconding Temporary Release, 1st Degree.
Present — Green, J. P., Lawton, Callahan, Balio and Fallon, JJ.
Judgment unanimously affirmed. Memorandum: County Court did not err in conducting the first day of defendant's trial in defendant's absence. On two occasions 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. Defendant's nonappearance at the first day of trial, therefore, constituted a waiver of the right to be present ( see, People v. Parker, 57 N.Y.2d 136, 141; People v. Dakin, 199 A.D.2d 407, 408, lv denied 82 N.Y.2d 923; People v. Jackson, 149 A.D.2d 969, lv denied 74 N.Y.2d 741, 897). The court delayed the start of the trial to allow defendant ample time to travel to court and to enable the prosecutor and defense counsel to locate defendant or provide a reasonable explanation for his absence. When defendant failed to appear and the efforts of counsel to locate him or explain his absence were unsuccessful, the court properly exercised its discretion in commencing the trial in defendant's absence ( see, People v. Webb, 236 A.D.2d 872, lv denied 90 N.Y.2d 865; People v. Daley, 207 A.D.2d 1000, lv denied 84 N.Y.2d 1010; People v. Quamina, 161 A.D.2d 1110, 1111-1112, lv denied 76 N.Y.2d 943).