Opinion
April 18, 1994
Appeal from the Supreme Court, Queens County (Sherman, J.).
Ordered that the judgment and the amended judgment are affirmed.
At the trial, the defense counsel stipulated that if a police department chemist were to testify, he would testify that the four sealed plastic bags being introduced into evidence against the defendant contained cocaine. On the afternoon of the second day of trial, the defendant did not appear, and the court stayed the issuance of a bench warrant until the following morning. After the jury was excused, the court marked the four bags of contraband into evidence, with the consent of the defendant's counsel and the codefendant's counsel, "subject to connection". On the following morning, the defendant reappeared, claiming that ill health had necessitated his absence on the preceding afternoon. Thereafter, an undercover police officer testified to purchasing the four bags of drugs from the defendant, marking them with his initials, vouchering and sealing them at the precinct, and retrieving them from the Property Clerk's Office for production at trial. The narcotics were then marked into evidence.
A defendant has a constitutional and statutory right to be present at all material stages of his trial, including "during the impaneling of the jury, the introduction of evidence, the summations of counsel, and the court's charge to the jury" (People v Velasco, 77 N.Y.2d 469, 472; People v Mullen, 44 N.Y.2d 1, 4; see, CPL 260.20). However, a defendant's presence at the trial is required "only where his absence would have a substantial effect on his ability to defend" (People v Mullen, supra, at 5), as, for example, where the proceeding involves factual matters about which the defendant might have peculiar knowledge that would be useful in advancing his or her position or countering the People's position (see, People v Favor, 82 N.Y.2d 254; People v Dokes, 79 N.Y.2d 656; People v Morales, 80 N.Y.2d 450). Here the simple marking of the contraband into evidence, subject to connection, during the defendant's absence, did not have a substantial effect on his ability to defend, nor did the proceeding involve factual matters about which the defendant might have peculiar knowledge. We note that the defendant had stipulated to the admission of the contraband, and that before it was actually admitted into evidence, a proper foundation was elicited in the defendant's presence and he was able to raise any objections or factual claims that he might have had.
We further find that the court did not improvidently exercise its discretion in ruling that the prosecutor would be permitted to interrogate the defendant as to the underlying facts of his three prior drug convictions if he testified at trial (see, People v Sandoval, 34 N.Y.2d 371; People v Monahan, 114 A.D.2d 380; People v Rahman, 62 A.D.2d 968, affd 46 N.Y.2d 882).
The defendant's remaining contentions are either unpreserved for appellate review, without merit, or do not warrant reversal (see, People v Crimmins, 36 N.Y.2d 230). Mangano, P.J., Pizzuto, Friedmann and Goldstein, JJ., concur.