Opinion
February 14, 1995
Appeal from the Supreme Court, Queens County (O'Brien, J.).
Ordered that the matter is remitted to the Supreme Court, Queens County, to hear and report on the question of whether the defendant was present at the Sandoval hearing, and the appeal is held in abeyance in the interim.
The defendant contends that he was not present during the Sandoval hearing and that, therefore, his conviction must be reversed (see, People v. Favor, 82 N.Y.2d 254). The record is silent as to whether the defendant was present. Since the defendant's presence at the Sandoval hearing would not have been merely "superfluous" because the Sandoval ruling was not "wholly favorable" to him (see, People v. Favor, supra), the threshold factual issue as to the defendant's presence or absence at the Sandoval hearing must be resolved before this appeal is decided. Thus, the appeal is held in abeyance and the case is remitted to the trial court for a hearing on this matter (see, People v. Law, 199 A.D.2d 282). Mangano, P.J., Bracken, Altman and Goldstein, JJ., concur.