HOUGHTALING, JEFFREY, PEOPLE v ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
905
KA 10-02041
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, GREEN, AND GORSKI, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JEFFREY HOUGHTALING, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)
MULDOON & GETZ, ROCHESTER (GARY MULDOON OF COUNSEL), FOR
DEFENDANT-APPELLANT.
THOMAS E. MORAN, DISTRICT ATTORNEY, GENESEO (ERIC R. SCHIENER OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Livingston County Court (Gerard J.
Alonzo, Jr., J.), rendered January 27, 2005. The judgment convicted
defendant, upon a jury verdict, of driving while intoxicated, as a
felony, aggravated unlicensed operation of a motor vehicle in the
first degree, driving while ability impaired by drugs, as a felony,
and criminal possession of a controlled substance in the seventh
degree.
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 [3]; § 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.
Entered: September 30, 2011 Patricia L. Morgan
Clerk of the Court