Opinion
2000-08617.
Decided January 26, 2004.
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.
Lynn W.L. Fahey, New York, N.Y. (Barry Stendig of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel), for respondent.
Before: WILLIAM F. MASTRO and REINALDO E. RIVERA, JJ.
DECISION ORDER
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 N.Y.2d 519; People v. Antommarchi, 80 N.Y.2d 247, 250; People v. Underwood, 201 A.D.2d 597), 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 N.Y.2d 386). A defendant, however, may waive the right to be present ( see People v. Velasquez, 298 A.D.2d 608, affd 1 N.Y.3d 44), 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 A.D.2d 402, 403; People v. Broadwater, 248 A.D.2d 719, 720; People v. Smallwood, 225 A.D.2d 713).
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.