People v. Smith — 66 N.Y.2d 755

Majority

p. 755

The People of the State of New York, Appellant, v Brunce Smith, Also Known as Bruce Smith, Nat Smith and Nathaniel Dickerson, Respondent.

Decided October 24, 1985

p. 756

APPEARANCES OF COUNSEL

Mario Merola, District Attorney (Tracey J. Miller of counsel), for appellant.

Juliet Neisser for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to the Appellate Division for consideration of the facts (CPL 470.40 [2] [b]; 470.25 [2] [d]).

Defendant was present when his case was assigned to Trial Part and was made aware by the assigning judge’s instructions that should the parties run out of witnesses at the pretrial hearing, requiring that the hearing be adjourned, the trial was to begin at that point, or, in any event, immediately following the conclusion of the hearing. Thus, by absconding after the third day of the hearing, defendant forfeited his right to be present at trial (People v Sanchez, 65 NY2d 436 ).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.