People v Zazzarino (Louis)

[*1] People v Zazzarino (Louis) 2017 NY Slip Op 51608(U) Decided on November 16, 2017 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 16, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : ANTHONY MARANO, P.J., BRUCE E. TOLBERT, JAMES V. BRANDS, JJ
2016-1637 W CR

The People of the State of New York, Respondent,

against

Louis Zazzarino, Appellant.

Louis Zazzarino, appellant pro se. City of White Plains (Corporation Counsel), for respondent (no brief filed).

Appeal from three judgments of the City Court of White Plains, Westchester County (Christie Dericco, J.), dated April 20, 2016. The judgments convicted defendant, after a nonjury trial, of violating Transportation Law § 140 (2) (c) (ii).

ORDERED that the judgments of conviction are reversed, on the law and as a matter of discretion in the interest of justice, the fines, if paid, are remitted and the matters are remitted to the City Court for all further proceedings.

In three simplified traffic informations, defendant was charged with violating Transportation Law § 140 (2) (c) (ii), which incorporated by reference 49 CFR 390.21 (b) (1), 49 CFR 390.21 (b) (2), and 49 CFR 385.301 (a), respectively.

When the cases were called, defendant was not present and, after a brief trial was conducted, defendant was found guilty as charged. The trial transcript indicates that defendant had been in the courtroom immediately prior to the trial but he had left on his own volition, without being advised by the court that the trial would proceed without him. The court imposed fines totaling $1,150.

We find that the judgments of conviction cannot stand (see People v Malekan, 56 Misc 3d 62 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]). While defendant could have been tried in absentia if he had been provided with Parker warnings (see People v Parker, 57 NY2d 136, 142 [1982]), there is nothing in the record on appeal indicating that he had been so informed.

We pass upon no other issue raised on appeal.

Accordingly, the judgments of conviction are reversed, the fines, if paid, are remitted and the matters are remitted to the City Court for all further proceedings.

MARANO, P.J., TOLBERT and BRANDS, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 16, 2017