602 N.Y.S.2d 359 | N.Y. App. Div. | 1993
—Judgment, Supreme Court, New York County (Daniel FitzGerald, J.), rendered December 16, 1991, convicting defendant, after a jury trial, of two counts of burglary in the second degree, and sentencing him to two consecutive prison terms of TVi to 15 years, unanimously affirmed.
Viewing the evidence in the light most favorable to the People (People v Contes, 60 NY2d 620), defendant’s guilt was proven beyond a reasonable doubt. Both complainants testified that they observed defendant inside their apartments from close range under well-lighted conditions. Defendant should not be heard to complain that the identification of one of the complainants was based on a photograph shown at a conditional examination since defendant himself caused the People to resort to this procedure by his refusal to attend that examination. The trial court did not err in receiving testimony from one of the complainants at the Wade hearing in defendant’s absence. A defendant’s right to be present at a suppression hearing may be waived, expressly or impliedly, provided that the waiver is knowing and voluntary (People v Peterson, 151 AD2d 512). Here, although no explicit waiver appears in the record, the circumstances indicate that defendant’s absence was knowing and voluntary. Defendant’s removal followed a discussion among counsel and the hearing court, and was not protested. Moreover, defendant indicated in post-hearing pro se motion papers that he had consented to his removal, stating that his lawyer had not wanted him present during the complainant’s testimony and that he only expected to be absent for a very short time. Finally, in light of defendant’s extensive criminal history, which includes numerous convictions for burglaries and other theft-related crimes, the imposition of consecutive prison terms was not an abuse of discretion.
We have considered defendant’s remaining contentions and find them to be without merit. Concur—Sullivan, J. P., Rosenberger, Ross and Asch, JJ.
