Opinion
February 14, 1994
Appeal from the Supreme Court, Queens County (Goldstein, J.).
Ordered that the judgment is affirmed.
At about 9:00 P.M. on December 11, 1990, the defendant accosted the complainant in front of her Queens home and snatched her purse, which contained several credit cards, from her shoulder. The jury convicted the defendant, inter alia, of robbery in the third degree.
The defendant's argument that his conviction must be reversed because he was absent during a portion of the Wade hearing is without merit. A criminal defendant has a constitutional and statutory right to be present at all material stages of his trial (see, e.g., CPL 260.20; People v. Mitchell, 80 N.Y.2d 519; People v. Antommarchi, 80 N.Y.2d 247; People v. Velasco, 77 N.Y.2d 469; People v. Mullen, 44 N.Y.2d 1). A suppression hearing constitutes such a fundamental material stage (see, People v Anderson, 16 N.Y.2d 282; People v. Gaines, 144 A.D.2d 941). However, a defendant may waive the right to be present (see, People v. Epps, 37 N.Y.2d 343, 349, cert denied 423 U.S. 999; People v. Gaines, supra, at 941-942), provided that he does so knowingly, voluntarily, and intelligently (see, People v Parker, 57 N.Y.2d 136, 140; People v. Epps, supra, at 350, citing Johnson v. Zerbst, 304 U.S. 458, 464; People v. Gaines, supra, at 941).
We find that the defendant's waiver in the present case was valid. He was in continuous contact with his attorney and was informed of his right to be present and of the consequences of his declining to appear (see, People v. Parker, supra, at 141). His attorney stated that the defendant chose to absent himself from the hearing, ostensibly for strategic reasons, and that it was the defendant's "right" to do so. Under these circumstances, we reject the defendant's claim that he was "deprived" of his right to be present. Moreover, that the defendant expressed his choice through trial counsel does not render the waiver invalid (see, People v. Poole, 48 N.Y.2d 144, 149; People v. Phillips, 92 A.D.2d 738, 739).
The defendant's Rosario claim is unpreserved for appellate review (see, CPL 470.05; People v. Rogelio, 79 N.Y.2d 843, 844; People v. Hilliard, 173 A.D.2d 559; People v. Rashid, 164 A.D.2d 951) and, in any event, lacks merit.
The defendant's sentence is not excessive (see, People v Suitte, 90 A.D.2d 80, 86).
We have examined the defendant's remaining contentions and find them to be without merit. Mangano, P.J., Rosenblatt, Copertino and Hart, JJ., concur.