People v. Perine

3 A.D.3d 586, 770 N.Y.S.2d 654, 2004 N.Y. App. Div. LEXIS 696

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 26, 2004
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lewis, J.), rendered September 8, 2000, convicting him of robbery in the first degree, criminal possession of a weapon in the fourth degree, and menacing in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

A criminal defendant has a constitutional and statutory right to be present at all material stages of the trial (see CPL 260.20; People v Mitchell, 80 NY2d 519 [1992]; People v Antommarchi, 80 NY2d 247, 250 [1992]; People v Underwood, 201 AD2d 597 [1994]), and questioning during the impaneling of the jury may constitute a material stage of the trial (see People v Antommarchi, supra at 250; People v Sloan, 79 NY2d 386 [1992]). A defendant, however, may waive the right to be present (see People v Velasquez, 298 AD2d 608 [2002], affd 1 NY3d 44 [2003]), provided that the waiver is made knowingly, voluntarily, and intelligently (see People v Underwood, supra). The fact that the defendant expresses his or her choice through counsel does not render the waiver invalid (see People v Womack, 292 AD2d 402, 403 [2002]; People v Broadwater, 248 AD2d 719, 720 [1998]; People v Smallwood, 225 AD2d 713 [1996]).

Under the facts of this case, where the defense counsel represented to the Supreme Court that he discussed the Antommarchi rules (see People v Antommarchi, supra) with the defendant, and that the defendant indicated to counsel that “[h]e doesn’t wish to be present,” the waiver was valid (see People v Underwood, supra at 597-598). Altman, J.P., Cozier, Mastro and Rivera, JJ., concur.