Opinion
KA 01-02376
December 30, 2002.
Appeal from a judgment of Oswego County Court (Elliott, J.), entered October 1, 2001, convicting defendant after a jury trial of attempted burglary in the third degree.
LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.
DENNIS N. HAWTHORNE, SR., DISTRICT ATTORNEY, OSWEGO (DONALD E. TODD OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., WISNER, HURLBUTT, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Oswego County Court for further proceedings in accordance with the following Memorandum:
On appeal from a judgment convicting him following a jury trial of attempted burglary in the third degree (Penal Law § 110.00, 140.20), defendant contends that reversal is required because County Court conducted the Sandoval conference at the bench, outside of defendant's presence. We hold the case, reserve decision and remit the matter to Oswego County Court to determine, following a reconstruction hearing, whether the Sandoval conference was conducted outside of defendant's presence, i.e., whether defendant was able to hear the Sandoval conference conducted at the bench and off the record ( see generally People v. Goodman, 284 A.D.2d 928; People v. James, 252 A.D.2d 979, lv denied 92 N.Y.2d 1033; People v. Sharpe, 241 A.D.2d 977, lv denied 91 N.Y.2d 880; cf. People v. Torres, 267 A.D.2d 261, lv denied 94 N.Y.2d 885; People v. Anderson, 253 A.D.2d 636, 637, lv denied 92 N.Y.2d 1027). At the reconstruction hearing, the People will have the burden of proof by a preponderance of the evidence ( see People v. Terry, 225 A.D.2d 1058, lv denied 88 N.Y.2d 886; cf. Torres, 267 A.D.2d at 261-262).
I respectfully dissent from the decision of the majority to hold the case, reserve decision and remit the matter to Oswego County Court for further proceedings. "After a defendant has been convicted on plea of guilty or after trial, the People are not required to assume the burden of establishing that what was done was regular in the absence of evidence to the contrary" ( People v. Smyth, 3 N.Y.2d 184, 187, rearg denied 3 N.Y.2d 942). The First, Second and Third Departments thus have held that the conclusory assertion of a defendant that he was not present at a pretrial Sandoval hearing, if unsupported by the record, is not sufficient to rebut the presumption of regularity that attaches to the proceeding ( see People v. Augustine, 235 A.D.2d 915, 919, appeal dismissed 89 N.Y.2d 1072, lv denied 89 N.Y.2d 1088; People v. Smith, 208 A.D.2d 455, lv denied 84 N.Y.2d 1039; People v. Robinson, 191 A.D.2d 523, lv denied 81 N.Y.2d 1018).
In this case, the record reflects that a Sandoval hearing was conducted in open court prior to trial, before the prospective jurors entered the courtroom. Defendant was present in the courtroom with his attorney. At defense counsel's request, both defense counsel and the prosecutor "approached the bench," where the hearing was held off the record. At the conclusion of the hearing, the court announced its decision on the record. Although defendant did not approach the bench with his attorney, there is no indication in the record whether defendant took part in the hearing, nor does the record indicate whether defendant was able to hear what transpired at the bench. On appeal, defendant contends only that the record fails to show his presence at the bench where the hearing was held. There is therefore no need for a reconstruction hearing in this case ( see People v. Torres, 267 A.D.2d 261, 261-262, lv denied 94 N.Y.2d 885; see also People v. Mack, 293 A.D.2d 762, lv denied 98 N.Y.2d 699). If defendant wishes to develop a further record, his remedy is a motion pursuant to CPL 440.10.