Summary
finding a knowing and voluntary waiver from "the colloquy between defense counsel and [the trial court]" which demonstrated that the defendant's absence was "a strategic one to prevent eyewitnesses from reinforcing their recollections by viewing him at the hearing," where the defendant was present at a pre-trial hearing for the testimony of witnesses on the issue of probable cause but was absent for the testimony of identification witnesses
Summary of this case from Clark v. StinsonOpinion
March 11, 1994
Appeal from the Supreme Court, Monroe County, Mark, J.
Present — Green, J.P., Balio, Lawton, Doerr and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: The record adequately supports the conclusion that defendant knowingly, voluntarily, and intelligently waived his right to be present at portions of the pretrial Wade-probable cause hearing (see, United States v. Wade, 388 U.S. 218). Defendant was present for the testimony of the witnesses on the probable cause issue, but was not in the courtroom for the testimony of the identification witnesses. The colloquy between defense counsel and Supreme Court demonstrates that the decision that defendant waive his presence at the Wade portions of the hearing was a strategic one to prevent eyewitnesses from reinforcing their recollections by viewing him at the hearing (see, People v. Closure, 202 A.D.2d 985 [decided herewith]; cf., People v. Huggler, 50 A.D.2d 471, 473-474).
We agree with Supreme Court's conclusion that the police had probable cause to arrest defendant; consequently, his motion to suppress the fruits of the arrest was properly denied. Finally, we conclude that Supreme Court was under no duty to conduct an inquiry on defendant's failure to testify (see, People v Fratta, 83 N.Y.2d 771).