The question on this appeal is whether a finding that a criminal defendant has received actual notice of the date for trial and has nonetheless voluntarily failed to appear is sufficient, as a matter of law, to permit the court to proceed to try the defendant in absentia. The courts below held this finding sufficient to establish an implicit relinquishment of a defendant's right to be present at trial. We disagree and reverse.
In February, 1977 defendant was indicted for two counts of criminal sale of a controlled substance in the third degree (Penal Law, § 220.39, subd 1). On Tuesday, July 5, 1977, the trial court notified defense counsel that defendant's case was scheduled for trial on Friday, July 8, 1977. Defense counsel immediately contacted defendant by telephone to notify her of the trial date. She replied that she was seriously ill, that she might not be able to appear for trial, and that she was too ill to meet with counsel prior to the trial date.
Defendant did not appear for trial on July 8. After being informed of defendant's illness by defense counsel, the court adjourned the matter until Monday, July 11. Defendant failed to appear on that day and defense counsel indicated that he had neither heard from nor been successful in locating defendant during the adjournment.
The trial court then conducted a hearing to determine defendant's whereabouts. The prosecutor called Jeanette Harris, who had known defendant for 10 years and who posted bail for her. Mrs. Harris testified, on direct examination, that she spoke with defendant on June 25, 1977, at which time defendant indicated an intention to leave town. Mrs. Harris also stated that defendant never mentioned that she was ill. On cross-examination, Mrs. Harris stated that about one month before the hearing defendant's sister told defendant to leave town but that defendant responded by saying she would not flee. She testified that her son, James Harris, told her defendant was "out in the street".
After Mrs. Harris testified, defense counsel told the court that defendant never told him she was planning to leave
At trial Officer Ruffin, of the Drug Enforcement Administration (DEA) Task Force of Monroe County, testified to purchasing cocaine and morphine from defendant. Two other DEA officers, who were observing Ruffin's vehicle from a distance of 60 feet at the time of the sale identified defendant as the individual who entered the vehicle when the transaction occurred. At the close of the People's case defense counsel called no witnesses but indicated that he would have called defendant had she not been tried in absentia, and that she would have rendered an exculpatory explanation of the transaction.
The jury returned a verdict finding defendant guilty on both counts of criminal sale of a controlled substance in the third degree. She was sentenced in absentia to an indeterminate term of two years to life in prison on each count, to run concurrently.
The Appellate Division affirmed the judgment of conviction, without opinion. We conclude that the trial court's factual finding of voluntary absence from court on the day scheduled for her appearance is alone insufficient as a matter of law to establish an implicit waiver of defendant's right to be present at trial so as to permit the court to try defendant in absentia.
A defendant's right to be present at a criminal trial is encompassed within the confrontation clauses of the State and Federal Constitutions (NY Const, art I, § 6; US Const, 6th Amdt) and the Criminal Procedure Law (CPL 260.20, 340.50). Of course the right to be present may, as a general matter, be waived under both Constitutions (Diaz v United States, 223 U.S. 442; People v Byrnes, 33 N.Y.2d 343).
More specifically, we have recently held that a waiver of the right to be present at a criminal trial may be inferred from certain conduct engaged in by the defendant after the trial has commenced. Thus in People v Epps (37 N.Y.2d 343, cert den 423 U.S. 999),
Although the right to be present at a criminal trial may be waived, the right is of a fundamental constitutional nature and therefore the validity of any waiver including one which could be implied, must be tested according to constitutional standards. Thus, in People v Epps (37 NY2d, supra, at p 350) we noted that the key issue was whether this defendant knowingly, voluntarily and intelligently relinquished his known right (Johnson v Zerbst, 304 U.S. 458, 464).
The People argue that a forfeiture rather than a waiver analysis should be applied in the trial in absentia context when the trial is commenced in defendant's absence. It is true that the forfeiture of a right may occur even though a defendant never made an informed, deliberate decision to relinquish that right. While waiver requires a knowing, voluntary and intelligent decision, which may be either express or implied, forfeiture occurs by operation of law without regard to defendant's state of mind (see, generally, Westen, Away from Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure, 75 Mich L Rev 1214). The People argue that forfeiture of the right to be present at trial occurs as a matter of law whenever defendant knows of the court date and nonetheless voluntarily fails to appear.
We reject this contention and conclude that Epps and Johnson (supra), require the application of a constitutional waiver analysis to the facts now before us. In Epps and
In order to effect a voluntary, knowing and intelligent waiver, the defendant must, at a minimum, be informed in some manner of the nature of the right to be present at trial and the consequences of failing to appear for trial (see Schneckloth v Bustamonte, 412 U.S. 218, 243-244; Brady v United States, 397 U.S. 742, 748). This, of course, in turn requires that defendant simply be aware that trial will proceed even though he or she fails to appear. As noted above, the defendants in Epps and Johnson were both expressly told that trial would proceed in their absence.
As we have previously noted, the record before us is devoid of any evidence indicating that defendant was ever apprised or otherwise aware that her trial would proceed in her absence. Defendant told her counsel that she might not be able to appear for trial due to illness and the trial court, after a hearing, determined that she had notice of a day certain for her scheduled appearance and deliberately failed to appear. However, the court made no finding regarding whether defendant was aware that the consequence of her absence would be that her trial would proceed without her being present.
Moreover, nothing in the record provides a basis for implying a waiver as a matter of law from the circumstances. In Taylor v United States (414 US, supra, at p 20)
We consider it appropriate to emphasize that even after the court has determined that a defendant has waived the right to be present at trial by not appearing after being apprised of the right and the consequences of nonappearance, trial in absentia is not thereby automatically authorized. Rather, the trial court must exercise its sound discretion upon consideration of all appropriate factors, including the possibility that defendant could be located within a reasonable period of time, the difficulty of rescheduling trial and the chance that evidence will be lost or witnesses will disappear (see United States v Peterson, 524 F.2d 167). In most cases the simple expedient of adjournment pending execution of a bench warrant could provide an alternative to trial in absentia unless, of course, the prosecution can demonstrate that such a course of action would be totally futile.
Accordingly, the order of the Appellate Division should be reversed and the matter remitted for a new trial.
Order reversed and a new trial ordered.