Even though the absence of counsel may be a factor to consider in determining whether defendant knowingly and intentionally entered into the polygraph stipulation, see State v. McDavitt, 62 N.J. at 41-42; State v. Sloan, 226 N.J. Super. 605, 613-615 (App.Div.), certif. den. 113 N.J. 647 (1988); State v. McMahon, 217 N.J. Super. 182, 184-187 (Law Div. 1986), counsel's presence is not a nonwaivable condition. We are therefore satisfied that the polygraph results were properly admitted into evidence because the test was administered "after a knowing and intelligent waiver by defendant of his right to counsel and upon a stipulation that was fully understood by him."
The right may also be waived. State v. McMahon, 217 N.J. Super. 182, 188-89 (Law Div. 1986). In this case, we discern no violation as defendant did not seek to compel Sergeant Jackson's appearance, but insisted on a speedy trial.
Defendant is bound by his stipulation of the videotapes as evidence and is now barred from raising the issue on appeal. State v. Nobles, 79 N.J. Super. 442, 447-48, 191 A.2d 793 (App.Div. 1963); State v. McMahon, 217 N.J. Super. 182, 524 A.2d 1348 (Law Div. 1986). Admission of the videotapes was not error, much less error "clearly capable of producing an unjust result."
It only allowed defendant to use an expert to challenge the testimony of the State's expert with respect to the stipulated test. But see State v. McMahon, 217 N.J. Super. 182 (Law Div. 1986). More is involved here than being able to approve or object to the procedure involved.