Opinion
October 31, 1994
Appeal from the Supreme Court, Queens County (Finnegan, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered. The facts have been considered and determined to have been established.
During the course of the voir dire portion of the trial, the court called counsel into chambers where it rendered its Sandoval ruling. It is conceded that the defendant was not present at that time, and there is no evidence in the record that the court conducted a hearing pursuant to People v. Sandoval ( 34 N.Y.2d 371).
Since the court's Sandoval decision was not wholly favorable to the defendant and since "the surrounding circumstances do not negate the possibility that the defendant might have made a meaningful contribution" when the decision was rendered (see, People v. Favor, 82 N.Y.2d 254, 267), the defendant's exclusion violated his right to be present at a material stage of the trial (see, People v. Dokes, 79 N.Y.2d 656). Although the in-chambers conference involved no colloquy between the court and the attorneys, the defendant's absence therefrom cannot be excused upon the argument that the issuance of the court's ruling involved only questions of law or procedure, thereby rendering the defendant's presence unnecessary (see, People v. Velasco, 77 N.Y.2d 469, 472; cf., People v. Bush, 187 A.D.2d 951). Since no hearing was conducted prior to the court's issuance of its ruling, the defendant's only opportunity to have any input regarding matters about which he might have peculiar knowledge occurred at the in-chambers conference from which he was excluded (see, People v. Dokes, 79 N.Y.2d 656, 660, supra). Moreover, it cannot be said that the defendant's presence "would have been `useless'" (People v. Velasco, 77 N.Y.2d 469, 473, supra, quoting Snyder v. Massachusetts, 291 U.S. 97, 106-107).
We find no merit to the defendant's contention that the verdict is against the weight of the evidence.
In light of our determination that a new trial is required, it is not necessary to address the defendant's remaining contentions. Santucci, J.P., Joy, Krausman and Goldstein, JJ., concur.