IN RE: MABELIN F. (2006)

Order, Family Court, Bronx County (Nelida Malave, J.), entered on or about March 7, 2006, which denied appellant's motion to waive her presence during portions of the fact-finding hearing, unanimously reversed, on the law, without costs, the motion granted and the matter remanded for further proceedings.

The Presentment Agency took no position on the application in Family Court or on this appeal.

 The court should have granted appellant's request to waive her presence during medical testimony about the death of her newborn child.   A criminal defendant or person alleged to be a juvenile delinquent has the right to waive his or her presence at the proceedings, provided that such waiver is knowing, intelligent and voluntary (see People v. Parker, 57 N.Y.2d 136, 140, 454 N.Y.S.2d 967, 440 N.E.2d 1313 [1982];  Matter of Arielle B., 17 A.D.3d 1056, 794 N.Y.S.2d 241 [2005] ).   With input from counsel and the support of an affidavit from her treating psychiatrist forecasting her likely harm if she were forced to attend the hearing during medical testimony, we conclude appellant intelligently decided to waive her right to be present.