Opinion
Submitted November 19, 1999
January 27, 2000
Appeal by the defendant from a judgment of the Supreme Court, Queens County (McDonald, J.), rendered May 7, 1997, convicting him of burglary in the third degree, criminal mischief in the third degree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.
M. Sue Wycoff, New York, N.Y. (Eric Gottlieb of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Lisa Drury, and Allison Wright of counsel), for respondent.
WILLIAM C. THOMPSON, J.P., GABRIEL M. KRAUSMAN, HOWARD MILLER, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the appeal is held in abeyance, and the matter is remitted to the Supreme Court, Queens County, for a reconstruction hearing to determine whether the defendant was present at the Sandoval hearing. The Supreme Court, Queens County, is to file its report with all convenient speed.
It is not clear from the record whether the defendant was present during the off-the-record Sandoval hearing, and the Supreme Court's Sandoval ruling was not "wholly favorable" to the defendant. Thus, we remit the matter to the Supreme Court for a reconstruction hearing to determine if the defendant was present ( see, People v. Michalek, 82 N.Y.2d 906; People v. Favor, 82 N.Y.2d 254; People v. Dokes, 79 N.Y.2d 656; People v. Smythe, 216 A.D.2d 424; People v. Bazil, 212 A.D.2d 622).
We reach no other issue at this juncture.
THOMPSON, J.P., KRAUSMAN, H. MILLER, and SCHMIDT, JJ., concur.