Opinion
February 4, 1994
Appeal from the Onondaga County Court, Cunningham, J.
Present — Balio, J.P., Callahan, Doerr and Boehm, JJ. [As amended by unpublished order entered Apr. 15, 1994.]
Judgment unanimously reversed on the law and new trial granted. Memorandum: We reserved decision and remitted this matter to Onondaga County Court for a reconstruction hearing (see, People v. Ballard, 189 A.D.2d 340, appeal dismissed sub nom. People v Walker, 81 N.Y.2d 1065) in accordance with our decision in People v. Mitchell ( 189 A.D.2d 337, lv dismissed sub nom. People v Walker, 81 N.Y.2d 1065; see also, People v. Michalek, 82 N.Y.2d 906). The record of the reconstruction hearing does not support a finding that defendant was present at the Sandoval conference and, therefore, reversal is required (see, People v. Dokes, 79 N.Y.2d 656, 662; see also, People v. Cruz, 81 N.Y.2d 738; People v Gebrosky, 80 N.Y.2d 995). Contrary to the People's contention, defendant's presence would not have been "superfluous" (People v Odiat, 82 N.Y.2d 872, 874; see, People v. Favor, 82 N.Y.2d 254).
We have considered defendant's remaining contentions, including those raised in the pro se supplemental brief, and find them to be without merit.