DECISION AND ORDER A hearing pursuant to People v. Parker, 57 N.Y.2d 136 (1982), having been conducted and argument having been heard, the Court has determined the waiver analysis of Parker does not apply at this time, and vacates the hearing. The Court directs that the criminal proceedings shall continue in the defendant’s absence until a date scheduled for hearing and trial. Should the defendant not return by that time, the Court will conduct a new Parker hearing to determine whether he has knowingly, voluntarily, and intelligently waived his right to be present. I. Defense counsel’s argument that the hearing was “untimely and procedurally unnecessary” was right, but for the wrong reasons. A Parker hearing is meant to determine whether a defendant has waived his statutory and constitutional rights to be present during trial. This matter not having been scheduled for trial, defense counsel was correct that such a hearing was procedurally unnecessary — there was no need to determine waiver because there is no existing right to be waived. The defendant has neither a statutory nor a constitutional right to be present for legal and logistical adjournments prior to trial. The People’s alternative request — that this matter be adjourned for decision on motions and thereafter scheduled for trial and a hearing pursuant to Parker — is therefore granted. II. The defendant’s right to be present in court under the Confrontation Clause is not implicated prior to trial. The Confrontation Clauses of the Federal and State Constitutions (U.S. CONST. 6TH AMEND.; N.Y. CONST. ART. I §6) grant the defendant the right to be present when “witnesses or evidence against him are being presented to the trier of fact” (People v. Sprowal, 84 N.Y.2d 113, 117 [1994]; see also Kentucky v. Stincer, 482 U.S. 730, 739 [1987]). This right does not attach until the trial commences and does not prevent the matter from proceeding in the defendant’s absence until that point. The defendant’s right to be present in court under the Due Process Clause does not prevent this matter from proceeding in the defendant’s absence until trial or pre-trial hearings commence, either. The Due Process Clauses of the Federal and State Constitutions (U.S. CONST. 14TH AMEND.; N.Y. CONST. ART. I §6) grant the defendant the right to be present at trial if his “presence might impact his ability to defend himself at a critical stage of the criminal proceeding” (People v. Rivera, 257 A.D.2d 172, 175 [1st Dept. 1999], citing Sprowal, 84 N.Y.2d at 117; Stincer, 482 U.S. at 744-46). This right encompasses ancillary proceedings wherein the defendant’s “peculiar factual knowledge” or “meaningful participation” might impact the outcome (People v. Fabricio, 3 N.Y.3d 402, 406 [2004]). Thus, courts have found that defendants have a right to be present during suppression hearings (People v. Anderson, 16 N.Y.2d 282 [1965]), evidentiary hearings (People v. Turaine, 78 N.Y.2d 871 [1991]), voir dire of prospective jurors regarding bias and background (People v. Antommarchi, 80 N.Y.2d 247 [1992]), Sandoval hearings (People v. Dokes, 79 N.Y.2d 656 [1992]), and Ventimiglia hearings (People v. Spotford, 85 N.Y.2d 593 [1995]). No court has extended this right to calendar adjournments prior to the commencement of hearings and trial for the purpose of moving the case forward. The defendant’s factual knowledge or meaningful participation during pre-trial adjournments do not impact the outcome of the myriad logistical and legal discussions that forestall a trial. Due Process does not require the defendant’s presence where it “would be useless, or the benefit but a shadow” (Snyder v. Massachusetts, 291 U.S. 97 [1934]), such as in “questions of law or procedure” (People v. Rodriguez, 85 N.Y.2d 586 [1995]). For example, the defendant has no right to be present during a discussion of the sufficiency of readback (People v. Rodriguez, 76 N.Y.2d 918 [1990]), a discussion of a stipulation (People v. Velasco, 77 N.Y.2d 469 [1991]), a competency examination of a child witness (Stincer, supra; People v. Morales, 80 N.Y.2d 450 [1992]), a sidebar conference regarding the opening of an evidentiary door (Rodriguez, 85 N.Y.2d 586), an audibility hearing (Rivera, supra), questioning of a seated juror regarding disqualification (People v. Harris, 99 N.Y.2d 202 [2002]), or a courtroom closure hearing based upon the fears of the witness (People v. Frost, 100 N.Y.2d 129 [2003]). The defendant’s presence in court for a decision, an argument over discovery, a control appearance, or an appearance to set a trial date would provide no more than a shadow of a benefit. The defendant’s Due Process rights cannot be said to prevent this matter from proceeding in his absence until hearings or trial commence. The defendant’s statutory right to be present only applies to trial, as well. “A defendant must be personally present during the trial of an indictment” (C.P.L. 260.20). This statutory right does not rest on the defendant’s right to confront, nor on his potential to contribute to the proceedings. It prevents “the ancient evil of secret trials” (Anderson, 16 N.Y.2d at 287) and, therefore, affords a broader right to be present than those found in the constitution. Being statutory in nature it is bound by its terms. It extends to the impaneling of the jury, the introduction of evidence, the summations of counsel, and the court’s charge to the jury (People v. Mullen, 44 N.Y.2d 1, 4 [1978]). It does not prevent the matter from proceeding in the defendant’s absence prior to the commencement of trial. III. The defendant’s Due Process rights do not encompass a right to participate in plea negotiation or a right to participate in motion practice. “[T]here is no constitutional right to plea bargain” (Weatherford v. Bursey, 429 U.S. 545, 561 [1977]). C.P.L. 220.10 statutorily prescribes the defendant’s right to plead guilty. The People have discretion not to offer a plea to less than the entire indictment, and a court has discretion not to accept one (Barnwell v. Breslin, 46 A.D.3d 990, 991 [3d Dept. 2007] [defendant cannot plead to less than entire indictment without court's permission]; People v. Antonio, 176 A.D.2d 528, 529 [1st Dept. 1991] [court cannot accept plea to less than entire indictment without People's consent]). Even the recent discovery reforms, which predicate time-sensitive plea offers upon the disclosure of discovery, demonstrate a court’s inability to compel the People to offer a plea (C.P.L. 245.25 [declining to grant court power to compel reinstatement of offer, but predicating sanctions on People's decision not to reinstate]). Defense counsel errs in her argument that Missouri v. Frye, 566 U.S. 134 (2012), and Lafler v. Cooper, 566 U.S. 156 (2012) entitle her client to engage in plea negotiations. In those cases, the Supreme Court of the United States held that the Sixth Amendment right to effective counsel requires defense attorneys to communicate plea offers to their clients (Frye, 566 U.S. at 145) and to competently advise their clients regarding the offer (Cooper, 566 U.S. at 162-163; see also McMann v. Richardson, 397 U.S. 759, 771). In both decisions, the Supreme Court held that a defendant must show prejudice to demonstrate ineffective assistance of counsel, “because a defendant has no right to be offered a plea” (Frye, 566 at 148 [citing Weatherford, 429 U.S. at 561]; Cooper, 566 U.S. at 168 [quoting Frye, 566 at 148]). There being no right for a defendant to be offered a reduced plea, the Court need not delay proceedings for the defendant to return to participate in plea negotiation. Nor need the Court wait for the absent defendant to return to commence motion practice. The defendant’s entitlement to motions is governed by statute, in particular C.P.L. 255.20. The defendant can waive this right through mere inaction (People v. Davidson, 98 N.Y.2d 738, 739 [2002] ["The time restrictions fixed by CPL 255.20 are not casual."]; People v. Newman, 107 A.D.3d 827, 828 [2d Dept. 2013]; People v. Jackson, 48 A.D.3d 891, 893 [3d Dept. 2008]; People v. Marengo, 287 A.D.2d 279 [1st Dept. 2001]; People v. Walls, 239 A.D.2d 906, 907 [4th Dept. 1997]). A defendant may also waive his right to motion practice by absconding (People v. Davis, 99 Misc. 2d 844, 846 [Sup. Ct. Kings Co. 1979] [cited with approval by People v. Woodward, 156 A.D.2d 225 [1st Dept. 1989]; People v. Hayes, 92 Misc. 2d 35, 37-38 [Sup. Ct. N.Y. Co. 1977]). Further, nothing prohibits defense counsel from making motions on an absent defendant’s behalf (see Root v. Kapelman, 67 A.D.2d 131, 138 [1st Dept. 1979] ["However, even though defense counsel may be deprived of the opportunity to consult with his client, he can still render effective assistance."]). IV. The defendant having no right to be present, the Court exercises its discretion to proceed without him. Allowing a defendant’s absence to stymie his prosecution would be contrary to good public policy (see Illinois v. Allen, 397 U.S. 337, 349 [1970] ["[T]here can be no doubt whatever that the governmental prerogative to proceed with a trial may not be defeated by conduct of the accused that prevents the trial from going forward.”]; People v. Sanchez, 65 N.Y.2d 436, 443-44 [1985] [defendant's actions should not "paralyze the proceedings of courts"]; People v. Douglass, 60 N.Y.2d 194, 200 [1983] [unnecessary adjournments burden opposing party, waste judicial resources, and contribute to calendar congestion]; Root, 67 A.D.2d at 138 [proceeding in absentia removes cases from backlog and eliminates predicate felony distinction between rearrested defendants who have absconded and those who returned to court]; see also C.P.L. 30.30[4][b] [public interest in prompt disposition of case]). This policy runs through our law, from statutes penalizing a defendant’s failure to appear (Penal Law 215.55, 215.56, 215.57), to cases permitting trial in the defendant’s absence (Parker, supra), to our State’s recent bail reform — which focuses on ensuring the defendant’s return to court (see e.g., C.P.L. 510.10[1]). Concomitant with the legislature’s efforts to end unnecessary lengthy pre-trial incarceration is the judiciary’s obligation to insure the interests of justice by moving cases along. This defendant was told by two judges, on two occasions, to appear on October 30, 2019 and he failed to do so. The defendant returned involuntarily on December 20, 2019. The People argue, and defense counsel does not dispute, that the record upon his return indicated he was in Massachusetts visiting his daughter for an extended vacation. This Court released the defendant under supervision on January 7, 2020 and instructed him to go to CASES pre-trial supervision on January 8, 2020 and return to court on January 9, 2020. The defendant did neither. The Court issued a bench warrant for the defendant on that day, which remains outstanding. Under these circumstances, there is no reason to believe that the defendant will return within a reasonable time. The Court is unpersuaded by defense counsel’s argument that the People must show necessity or prejudice before the matter proceeds. It defies logic to make the People wait for witnesses’ memories to fade or other spoliation of their evidence before continuing. Recent changes to our law undermine defense counsel’s argument: “The court may grant [a continuance at the request of defense counsel] only if it is satisfied that postponement is in the interest of justice, taking into account the public interest in the prompt dispositions of criminal charges” (C.P.L. 30.30[4][b] [emphasis added]). Irrespective of prejudice, the Court has authority to control its calendar (Douglass, 60 N.Y.2d at 200 ["trial courts are vested with substantial power to control their calendars."]; see also Plachte v. Bancroft, 3 A.D.2d 437, 438 [1st Dept. 1957] ["It is ancient and undisputed law that courts have an inherent power over the control of their calendars."]). Nor does the Court agree with defense counsel that it is inappropriate both to issue a warrant and to proceed in absentia. The Parker Court’s suggestion that a bench warrant may serve in lieu of continuing in absentia does not prevent the Court, having determined “that such a course of action would be totally futile” (Parker, 57 N.Y.2d at 142), from proceeding with a case while a bench warrant is active. The Court’s determination to proceed without the defendant does not relieve him of his obligation “to appear in the criminal action or proceeding involved whenever [his] attendance may be required and to be at all times amenable to the orders and processes of the court” (C.P.L. 510.40[1]). A defendant who has been released under “the least restrictive alternative and condition or conditions that will reasonably assure [his] return” (C.P.L. 510.10[1]) offends the Court with his absence. A bench warrant is the remedy “to achieve the court appearance of a defendant in a pending criminal action” (C.P.L. 1.20[30]). It is therefore ordered that this case proceed until a date set for hearing and trial. If the defendant has not returned at that time, a hearing will be held to determine whether he has impliedly waived his right to be present at trial. This constitutes the Decision and Order of the Court. Dated: February 20, 2020
