Opinion
June 5, 1989
Appeal from the Supreme Court, Queens County (Pitaro, J.).
Ordered that the judgment is affirmed.
The sole issue raised by the defendant is whether he was denied due process when the trial court proceeded to conduct a Sandoval hearing without him being physically present.
A criminal defendant's constitutional and statutory right to be present during all material portions of the trial of an indictment (see, CPL 260.20; People v. Mullen, 44 N.Y.2d 1, 4-5) may be waived, either expressly or impliedly, provided that the waiver was knowing, voluntary and intelligent (see, People v Parker, 57 N.Y.2d 136, 140; People v. Hubener, 133 A.D.2d 233). In the instant case, defense counsel expressly waived his client's presence at the beginning of the pretrial conference which encompassed the hearing, and participated in the hearing in the absence of the defendant without objection. Moreover, neither the defendant nor his attorney raised an objection or moved to reopen the hearing at any point in time subsequent thereto. Under such circumstances, it cannot be said that the defendant's rights were prejudiced by his absence from the Sandoval hearing (see, People v. Colombani, 22 A.D.2d 956, affd 16 N.Y.2d 1055, rearg denied 17 N.Y.2d 730; see also, People v. Stoute, 140 A.D.2d 728). Mangano, J.P., Thompson, Sullivan and Balletta, JJ., concur.