        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1326
KA 14-02038
PRESENT: SCUDDER, P.J., SMITH, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

SUSAN M. CALLAHAN, DEFENDANT-APPELLANT.


NELSON S. TORRE, BUFFALO, FOR DEFENDANT-APPELLANT.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Steuben County Court (Marianne
Furfure, A.J.), rendered March 28, 2014. The judgment revoked a
sentence of probation and imposed a sentence of imprisonment.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and the matter is remitted to Steuben
County Court for a new hearing in accordance with the following
memorandum: On appeal from a judgment revoking the term of probation
imposed upon her conviction of felony driving while intoxicated
(Vehicle and Traffic Law §§ 1192 [3]; 1193 [1] [c] [i]) and imposing a
term of incarceration, defendant contends that County Court erred in
conducting the violation of probation hearing in her absence. We
agree.

     Initially, we reject the People’s contention that defendant
failed to preserve her contention for our review. The record
establishes that defense counsel informed the court immediately prior
to the start of the hearing that defendant was requesting an
adjournment of the proceeding, and the court responded that it would
proceed with the hearing and did so immediately. Consequently, the
record establishes that the court, “in response to defendant’s
[request], ‘expressly decided the question raised on appeal,’ thus
preserving the issue for review” (People v Smith, 22 NY3d 462, 465).

     Contrary to defendant’s contention, the court provided the
requisite Parker warnings (People v Parker, 57 NY2d 136, 141). The
record establishes that the court informed defendant at a prior
appearance that the hearing would proceed in her absence if she failed
to appear, and that she could be sentenced to a maximum state prison
sentence if she was found to have violated the conditions of her
probationary sentence. Although Parker concerned a defendant’s
failure to appear at trial, the same precepts apply to violation of
probation proceedings (see e.g. People v Severino, 44 AD3d 1077, 1079,
                                 -2-                          1326
                                                         KA 14-02038

lv denied 9 NY3d 1038; People v Smith [Robert E.], 148 AD2d 1007,
1007-1008, lv denied 74 NY2d 747).

     We agree with defendant, however, that the record fails to
establish that “the court had inquired into the surrounding
circumstances and determined that the defendant’s absence was
deliberate” before proceeding with the hearing (People v Brooks, 75
NY2d 898, 899, mot to amend remittitur granted 76 NY2d 746; see People
v Bynum, 125 AD3d 1278, 1278, lv denied 26 NY3d 927). Here, after
defense counsel informed the court of defendant’s request for an
adjournment, the court immediately indicated that it was prepared to
proceed in her absence, and the court began the hearing. We therefore
reverse the judgment and remit the matter to County Court for a new
hearing.




Entered:   December 23, 2015                   Frances E. Cafarell
                                               Clerk of the Court
