Opinion
April 19, 1996
Appeal from the Onondaga County Court, Mulroy, J.
Present — Green, J.P., Lawton, Wesley, Doerr and Boehm, JJ.
Case held, decision reserved and matter remitted to Onondaga County Court for further proceedings in accordance with the following Memorandum: When this appeal was previously before us, we held the case, reserved decision and remitted the matter for a reconstruction hearing to determine whether defendant was present at an in-chambers Sandoval hearing ( People v. Baxter, 216 A.D.2d 931). The testimony at the reconstruction hearing was sharply conflicting on the issue of defendant's presence. County Court, however, made neither findings of fact nor a determination whether defendant was present at the Sandoval hearing. "Resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the hearing court, which saw and heard the witnesses" (People v. Michalek, 218 A.D.2d 750, 751, lv denied 86 N.Y.2d 874). We, therefore, reserve decision and remit the matter to Onondaga County Court to make findings of fact and a determination whether defendant was present at the Sandoval hearing ( see, People v. Sharpe, 225 A.D.2d 1075; People v. Ireland, 222 A.D.2d 1075; People v. Miller, 221 A.D.2d 1001; cf., People v. James, 221 A.D.2d 963).