People v. Ramirez

229 A.D.2d 452, 645 N.Y.S.2d 81, 1996 N.Y. App. Div. LEXIS 7643

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered March 23, 1993, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the Supreme Court violated his rights under CPL 710.40 (3) by proceeding to trial without determining a branch of his omnibus motion. We disagree. Although the defendant has a right to a determination on a pretrial motion prior to the commencement of trial (see, CPL 710.40 [3]), the defendant waived this right by voluntarily proceeding with jury selection prior to a determination on a branch of his omnibus motion (see, People v Sterling, 141 AD2d 680; People v Melendez, 141 AD2d 860).

Furthermore, the court did not improvidently exercise its discretion in trying the defendant in absentia. The defendant was informed, on more than one occasion, of his right to be present at trial and of the consequences of failing to appear (see, People v Parker, 57 NY2d 136). The defendant was also informed of the trial date and the date of adjournment. In addition, reasonable efforts were made to locate the defendant (see, People v Parker, supra). Accordingly, the court properly proceeded in absentia.

The defendant’s remaining contention is without merit (see, People v Rivera, 71 NY2d 705). O’Brien, J. P., Sullivan, Florio and McGinity, JJ., concur.