People v. Cooke

Judgment, Supreme Court, Bronx County (Phylis Skloot Bamberger, J., at hearing; Gerald Sheindlin, J., at plea and sentence), rendered June 11, 1997, convicting defendant of criminal sale of a controlled substance in the third degree (three counts) and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4V2 to 9 years, and judgment, same court (Frank Torres, J.), rendered October 7, 1997, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a consecutive term of three years, unanimously affirmed.

The hearing court properly declined to adjourn the suppression hearing and properly conducted the hearing in defendant’s absence notwithstanding a communication from the Department of Correction that defendant refused to be produced on religious grounds. There was no violation of defendant’s rights to be present or to free exercise of religion, since the record *168establishes that defendant’s claim of religious observance on Fridays was not sincere (see, United States v Seeger, 380 US 163, 185; People v Johnson, 143 AD2d 847, lv denied 73 NY2d 856). Defendant had not objected two days earlier when the hearing was postponed to a Friday, the court file contained no notation that defendant declined to appear on Fridays for religious reasons, and the court’s check of the calendar indicated that defendant previously had appeared on Fridays on numerous occasions. From this, the court reasonably concluded that defendant was, in the court’s words, “playing games.” Furthermore, defendant’s deliberate refusal to appear for a suppression hearing after being made aware of its rescheduled date only two days before establishes that he forfeited his right to be present (People v Sanchez, 65 NY2d 436, 443-444).

We perceive no basis for a reduction of sentence. Concur— Andrias, J.P., Saxe, Rosenberger, Wallach and Buckley, JJ.