People v. Green

127 A.D.2d 788, 512 N.Y.S.2d 183, 1987 N.Y. App. Div. LEXIS 43271

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (McMahon, J.), rendered May 14, 1985, convicting him of robbery in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Lange, J.), of that branch of the defendant’s omnibus motion which was to suppress identification testimony.

Ordered that the judgment is affirmed.

Upon the facts of this case, the hearing court did not abuse its discretion when it denied the defendant’s request for an adjournment of the Wade hearing based upon the defendant’s ear infection, which he claimed affected his ability to hear. The defendant supplied no medical documentation, responded to questions posed by the court without assistance, and did not demonstrate an inability to comprehend the proceedings or consult with his attorney (see, Matter of Anthony M., 63 NY2d 270, 283-284; People v Ramos, 26 NY2d 272, 275). In any event, the defendant knowingly, voluntarily and intelligently waived his presence in court during a portion of the Wade hearing (see, Johnson v Zerbst, 304 US 458, 464; People v Parker, 57 NY2d 136, 141; People v Epps, 37 NY2d 343, 349-350, cert denied 423 US 999), and therefore may not now complain that he was denied his right to be present and assist in his defense during that time. Lawrence, J. P., Kunzeman, Spatt and Sullivan, JJ., concur.