PEOPLE v. PERINE

ORDERED that the judgment is affirmed.

A criminal defendant has a constitutional and statutory right to be present at all material stages of the trial ( see CPL 260.20; People v. Mitchell, 80 N.Y.2d 519; People v. Antommarchi, 80 N.Y.2d 247, 250; People v. Underwood, 201 A.D.2d 597), and questioning during the impaneling of the jury may constitute a material stage of the trial ( see People v. Antommarchi, supra at 250; People v. Sloan, 79 N.Y.2d 386). A defendant, however, may waive the right to be present ( see People v. Velasquez, 298 A.D.2d 608, affd 1 N.Y.3d 44), provided that the waiver is made knowingly, voluntarily, and intelligently ( see People v. Underwood, supra). The fact that the defendant expresses his or her choice through counsel does not render the waiver invalid ( see People v. Womack, 292 A.D.2d 402, 403; People v. Broadwater, 248 A.D.2d 719, 720; People v. Smallwood, 225 A.D.2d 713).

Under the facts of this case, where the defense counsel represented to the Supreme Court that he discussed the Antommarchi rules ( see People v. Antommarchi, supra) with the defendant, and that the defendant indicated to counsel that "[h]e doesn't wish to be present," the waiver was valid ( see People v. Underwood, supra at 597-598).

ALTMAN, J.P., COZIER, MASTRO and RIVERA, JJ., concur.