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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Stephan WASHINGTON, Appellant.

Decided: January 26, 1998

Before MILLER, J.P., and RITTER, ALTMAN and KRAUSMAN, JJ. Michael E. Greenspan, White Plains, for appellant. Jeanine Pirro, District Attorney, White Plains (Jeffrey M. Pasquerella and Richard Longworth Hecht, of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Westchester County (West, J.), rendered November 30, 1994, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

In the course of the pretrial Wade hearing, the defendant requested that he not be present in the courtroom during the testimony of the complaining witness.   The court granted the application, and directed that the defendant be brought to the adjacent jury room with that door left open so the defendant could hear the proceedings.   After the conclusion of the cross-examination of the complainant, the defense counsel asked to speak with the defendant and the record indicates that counsel and the defendant did confer.   The defendant did not object to this procedure.   Thereafter the complainant was excused.   The court entertained arguments on the Wade issue and made a ruling, and thereafter conducted a Sandoval hearing.   The record does not expressly reflect that the defendant was returned to the courtroom prior to the commencement of the Sandoval hearing.

It is now settled that a criminal defendant has the right to be present at all material stages of his trial, including a Sandoval hearing (see, People v. Dokes, 79 N.Y.2d 656, 584 N.Y.S.2d 761, 595 N.E.2d 836).   However, it is equally settled that a presumption of regularity attaches to all judicial proceedings, and the defendant bears the burden of rebutting that presumption (see, People v. McGee, 220 A.D.2d 799, 801, 632 N.Y.S.2d 280).   On the instant record, the defendant has not rebutted the presumption of regularity, inasmuch as he has not demonstrated that he was, in fact, absent from the Sandoval hearing (see, People v. DelRio, 220 A.D.2d 122, 132, 646 N.Y.S.2d 117;  People v. McGee, supra;  People v. Robinson, 191 A.D.2d 523, 595 N.Y.S.2d 56).

Significantly, the defendant left the courtroom of his own volition, so as to prevent the complainant from having an additional opportunity to observe him prior to trial.   He was placed in the adjacent jury room and there is no indication that he was unable to hear all relevant proceedings (see, People v. Brown, 221 A.D.2d 160, 638 N.Y.S.2d 427;  People v. Swift, 213 A.D.2d 355, 624 N.Y.S.2d 423).   Moreover, the record demonstrates that the defense counsel remained in the courtroom and that the defendant was not denied the opportunity to confer with his attorney (see, People v. Swift, supra;  People v. Walker, 202 A.D.2d 312, 609 N.Y.S.2d 201;  see also, People v. Byrnes, 33 N.Y.2d 343, 350, 352 N.Y.S.2d 913, 308 N.E.2d 435).   In light of the foregoing, and in the absence of any conclusive proof in the record that the defendant was genuinely absent from the proceedings, we find that the presumption of regularity enables us to conclude that he was present for his Sandoval hearing (see, People v. Augustine, 235 A.D.2d 915, 654 N.Y.S.2d 179).


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