New York: Trial and Sentence in Absentia

You have a trial in Manhattan Supreme Court or Brooklyn Criminal Court and you fail to return on the scheduled date. In the alternative, you pleaded guilty in Bronx Criminal Court after bargaining with the prosecutor and the judge scheduled a date for sentencing, but you didn’t return. The question you now have is can the judge proceed with the trial against me or can he sentence me or increase my sentence without me being there?

Judges, prosecutors and criminal defense attorneys often throw around a term that is applicable to this question. That is, did you receive your Parker Warnings? The Court of Appeals, in People v. Parker and the line of cases that followed, has held that a defendant must be present at the time of trial and sentence. This right can be waived, but the defendant must be informed at the time he pleaded guilty or the case was adjourned for trial that the case would proceed without his presence. Moreover, in the event of a sentencing, the defendant must also be advised that he may receive a harsher sentence if he does not return and he will not be permitted to withdraw his plea.

In the event a defendant does not return for sentencing or trial, a Parker Hearing should be ordered to determine that the defendant’s absence was voluntary or whether the defendant may be located within a reasonable amount of time. When these hearings take place, the prosecution is usually required to establish that the defendant was not hospitalized, jailed in another jurisdiction or had other issues impacting his ability to return to court. In other words, a defendant’s absence does not give the prosecution or the court the blanket authority to proceed with the case.

Regardless of your situation, it is always important to get to court on time and on the scheduled date. Even if the case does not proceed in your absence, a bench warrant may be issued authorizing your immediate arrest. If there is a legitimate reason for your absence and you know in advance (such as hospitalization), you should supply a criminal defense attorney with any and all applicable information and documentation so that he can prevent any warrant from being ordered.

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