Opinion
No. KA 06-03548.
June 5, 2009.
Present: Smith, J.P., Centra, Peradotto and Gorski, JJ.
Motion for reargument and other relief granted to the extent that, upon rear-gument, the memorandum and order entered February 6, 2009 ( 59 AD3d 942) is amended by adding the following sentences before the last sentence of the memorandum: "It cannot be said that the procedure utilized by the court is authorized by People v Fuller ( 57 NY2d 152). Indeed, the court attorney did not act merely as a 'preliminary fact finder' ( id. at 158) but, rather, he conducted an adversarial hearing and made credibility determinations, thereby assuming a role specifically limited to the authority of the court ( see Penal Law § 60.27; Fuller, 57 NY2d at 158-159)."