dissents in a memorandum as follows: In my
view, the circumstances of this case do not warrant reversal since defendant was not deprived of his right to be present at a material stage of the proceedings when, in his absence, the finding of fitness was confirmed. Accordingly, I dissent.
The case is controlled by People v Slejska (197 AD2d 420, 421, Iv denied 82 NY2d 903), in which we held that while defendant has the right to be present at any material stage of the trial, "inasmuch as no hearing was conducted on defense counsel’s unopposed motion to confirm the respondent’s finding defendant unfit to proceed, counsel’s presence, alone, was sufficient.” That the defendant in Slejska was found unfit to proceed and his trial was aborted and in this case defendant was found fit is a distinction without a difference.
"[D]ue process requires that a defendant be present 'whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.’ ” (People v Dokes, 79 NY2d 656, 659, quoting Snyder v Massachusetts, 291 US 97, 105-106.) "In determining whether a defendant has a right to be present during a particular *84proceeding, a key factor is whether the proceeding involved factual matters about which defendant might have peculiar knowledge that would be useful in advancing the defendant’s or countering the People’s position. If so * * * then the defendant has a right to be present.” (Supra, at 660.) Thus, a defendant’s presence is not required "when presence would be useless, or the benefit but a shadow.” (Snyder v Massachusetts, supra, at 106-107; see also, People v Dokes, supra, at 662), i.e., when his presence would be "superfluous” (People v Dokes, supra, at 662).
In this case, the outcome of the proceeding from which defendant was excluded, a separate and discrete application, was "wholly favorable.” (People v Favor, 82 NY2d 254, 267.) He received precisely the relief he sought; his motion to confirm the reports was granted. There is nothing in the record which suggests that defense counsel acted counter to defendant’s interest or wishes or that, had defendant been present, he might have opposed defense counsel’s motion to confirm.* Thus, his presence would have been "wholly 'superfluous’ ” (supra, at 268, quoting People v Dokes, supra, at 662), and reversal is not required. If, as the majority concludes, the test of whether the outcome of a proceeding is "wholly favorable” is the trial’s ultimate outcome, there is no phase of a trial resulting in a conviction that would not require a defendant’s presence.
In reversing the judgment, the majority relies on the court’s independent obligation to assess competency and suggests that, in defendant’s absence, the court was unable to make a reasoned determination as to whether it should hold a hearing. (See, CPL 730.30 [2].) The existence of a history of irrational behavior, the defendant’s demeanor and prior medical opinion as to his competence (see, People v Arnold, 113 AD2d 101, 103) are not, as the majority concludes, factors to be considered in determining, after competency examinations, whether to order a hearing, but rather in determining whether to direct a competency examination in the first place. (See, supra; see also, People v Armlin, 37 NY2d 167, 171.) In any event, any information the defendant might be able to provide regarding his history of irrational behavior or any prior medical opinion as to his competence would only be elicited if the court held a hearing. None was held in this *85case. As to defendant’s demeanor, the court had the opportunity of observing him at other proceedings, the most recent of which was only three weeks earlier. It is difficult to accept the notion that a determination as to whether to confirm reports finding defendant fit to stand trial may turn on something as ephemeral as how a defendant appeared at a particular calendar call. In any event, the right to be present speaks to concerns other than the right to be a mere exhibit.
When the experts agree in an opinion of fitness, the decision of whether or not to conduct a hearing to determine capacity rests within the court’s discretion. (CPL 730.30 [2].) There is nothing on this record that suggests that the failure to conduct such a hearing was an abuse of discretion.
Since defendant has at no time made a claim that counsel’s representation was inadequate, it is reasonable to infer that defendant consented to or ratified counsel’s motion to confirm.