PEOPLE v. TUCKER (1999)

 Contrary to the contention of defendant, he was not deprived of his constitutional right to be present at all stages of his trial.   Despite being warned of the importance of being present in the courtroom, defendant repeatedly insisted that he did not wish to remain and thus waived his right to be present.   In addition, defendant forfeited the right to be present by engaging in disruptive behavior (see, People v. Lewis, 231 A.D.2d 919, 648 N.Y.S.2d 848, lv. denied 89 N.Y.2d 1096, 660 N.Y.S.2d 390, 682 N.E.2d 991;  see also, People v. Byrnes, 33 N.Y.2d 343, 349-350, 352 N.Y.S.2d 913, 308 N.E.2d 435;  People v. Gloster, 175 A.D.2d 258, 572 N.Y.S.2d 370, lv. denied 78 N.Y.2d 1011, 575 N.Y.S.2d 819, 581 N.E.2d 1065).   In the absence of a showing of good cause, defendant was not deprived of his right to counsel by County Court's refusal to assign him a third successive attorney just prior to voir dire (see, People v. Sawyer, 57 N.Y.2d 12, 18-19, 453 N.Y.S.2d 418, 438 N.E.2d 1133, rearg. dismissed 57 N.Y.2d 776, 454 N.Y.S.2d 1033, 440 N.E.2d 1343, cert. denied 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1024;  People v. Herbert, 251 A.D.2d 754, 674 N.Y.S.2d 785, lv. denied 92 N.Y.2d 983, 683 N.Y.S.2d 764, 706 N.E.2d 752;  People v. Garcia, 250 A.D.2d 421, 673 N.Y.S.2d 91, lv. denied 92 N.Y.2d 897, 680 N.Y.S.2d 61, 702 N.E.2d 846).

 The prosecutor's peremptory challenges to two black jurors did not violate defendant's constitutional right to equal protection under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69.   The prosecutor's explanations for the challenges were race-neutral and were not pretextual (see, People v. Hernandez, 75 N.Y.2d 350, 356-358, 553 N.Y.S.2d 85, 552 N.E.2d 621, affd. 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395;  People v. Wint, 237 A.D.2d 195, 198, 655 N.Y.S.2d 469, lv. denied 89 N.Y.2d 1103, 660 N.Y.S.2d 397, 682 N.E.2d 998;  People v. Anaya, 206 A.D.2d 380, 614 N.Y.S.2d 59, lv. denied 84 N.Y.2d 865, 618 N.Y.S.2d 11, 642 N.E.2d 330).

 The court articulated a reasonable basis for requiring defendant to remain in handcuffs during a portion of the trial and thus acted within its discretion in restraining defendant (see, People v. Rouse, 79 N.Y.2d 934, 582 N.Y.S.2d 986, 591 N.E.2d 1172;  People v. Houk, 222 A.D.2d 1074, 1075, 636 N.Y.S.2d 237;  People v. Freeman, 184 A.D.2d 864, 585 N.Y.S.2d 113, lv. denied 80 N.Y.2d 903, 588 N.Y.S.2d 829, 602 N.E.2d 237).   Finally, the sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: