Opinion
October 20, 1997
Appeal from the Supreme Court, Kings County (Delury, J.).
Ordered that the appeal is held in abeyance, and the matter is remitted to the Supreme Court, Kings County, for a reconstruction hearing to determine whether the defendant was present at the Sandoval hearing. The Supreme Court, Kings County, is to file its report with all convenient speed.
Because there was no record of the Sandoval hearing, we cannot determine whether the defendant was present for the hearing. 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 ( People v. Favor, 82 N.Y.2d 254, 267), this threshold factual issue must be resolved. Therefore, the case is remitted to the Supreme Court, Kings County, for a reconstruction hearing to determine whether or not the defendant was present ( see, People v. Michalek, 82 N.Y.2d 906; People v Smythe, 216 A.D.2d 424; People v. Bazil, 212 A.D.2d 622).
Bracken, J.P., Rosenblatt, Copertino and Luciano, JJ., concur.