Opinion
May 11, 1990
Appeal from the Monroe County Court, Celli, J.
Present — Denman, J.P., Green, Pine, Balio and Lawton, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: County Court erred in proceeding with the trial in defendant's absence. A defendant may waive his constitutional right to be present at trial (People v. Epps, 37 N.Y.2d 343, 349), but for the waiver to be effective, the record must reveal that the defendant was aware that he had the right to be present and that the trial would proceed in his absence (People v. Parker, 57 N.Y.2d 136, 141). Here, defendant was never advised of his right to be present or of the consequences of his failure to appear. Thus, it cannot be said that defendant voluntarily and knowingly waived his right to be present at trial (see, People v. Parker, supra; People v. Gaines, 144 A.D.2d 941; People v. Walker, 104 A.D.2d 759; People v. Scott, 104 A.D.2d 667). Absent a waiver, the court had no jurisdiction to try defendant in absentia, and the trial was a nullity (see, People v. Epps, supra, at 348-349; Maurer v. People, 43 N.Y. 1). A new trial is mandated, and thus, we do not reach the remaining issues raised by defendant.