         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
576
KA 09-00308
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TERRY HILL, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered April 2, 2001. The judgment convicted defendant,
upon a jury verdict, of robbery in the first degree, assault in the
second degree and criminal possession of a weapon in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, robbery in the first degree (Penal
Law § 160.15 [3]). We reject defendant’s contention that he was not
afforded the opportunity to testify at trial and that he did not
knowingly, voluntarily and intelligently waive his right to testify at
trial. Even assuming, arguendo, that defendant was not required to
preserve that contention for our review, we conclude that it is
without merit. Defendant waived his constitutional right to be
present at the material stages of the criminal proceedings when he
requested to be excused from the last part of his trial (see generally
People v Epps, 37 NY2d 343, 348-351, cert denied 423 US 999). Prior
to defense counsel’s cross-examination of the final prosecution
witness, defendant repeatedly requested to be excused from the
proceedings and promised to cause a disruption if he was not allowed
to leave. Although County Court did not specifically ask defendant if
he was waiving his right to testify, defendant’s responses to the
questions of the court demonstrated that he knowingly, voluntarily,
and intelligently waived his right to be present at the remainder of
the trial (see id. at 350). Also, defense counsel indicated that she
discussed defendant’s request with him and that he wished to be
excused from the remainder of his trial. Although a court must
“ ‘indulge every reasonable presumption against waiver’ ” of a
constitutional right (Johnson v Zerbst, 304 US 458, 464), we conclude
that defendant was well aware of the “likely consequence[]” that he
                                 -2-                           576
                                                         KA 09-00308

would not be able to testify based on his absence from the proceedings
(Brady v United States, 397 US 742, 748) and that he thereby waived
his right to testify (see Taylor v United States, 414 US 17, 19-20;
People v Menner, 2 AD3d 650, lv denied 3 NY3d 678; People v Price, 240
P3d 557, 563 [Colo]).




Entered:   May 6, 2011                         Patricia L. Morgan
                                               Clerk of the Court
