Opinion
April 15, 1994
Appeal from the Monroe County Court, Egan, J.
Present — Denman, P.J., Balio, Fallon, Doerr and Davis, JJ.
Judgment unanimously reversed on the law and indictment dismissed without prejudice to the People to re-present any appropriate charges to another Grand Jury. Memorandum: The record of the reconstruction hearing (see, People v Mitchell, 189 A.D.2d 337) reveals that defendant was not present in chambers at the Sandoval conference. The record further reveals that the court ruled that the People could cross-examine defendant about two prior convictions if she testified. Reversal is required because defendant was not present at a material stage of the trial (see, People v Dokes, 79 N.Y.2d 656, 662; see also, People v Favor, 82 N.Y.2d 254; People v Gebrosky, 80 N.Y.2d 995; People v Hall, 201 A.D.2d 891; People v Dincher, 201 A.D.2d 892). The trial court's recitation of the gist of its Sandoval ruling in open court in defendant's presence did not constitute a de novo hearing (cf., People v Cole, 202 A.D.2d 988; People v Berger, 188 A.D.2d 1073, lv denied 81 N.Y.2d 881), and did not ameliorate the error (see, People v Favor, supra; People v Hall, supra). Furthermore, we cannot say that defendant's presence would have been "superfluous" (People v Odiat, 82 N.Y.2d 872, 874; see, People v Michalek, 82 N.Y.2d 906; People v Favor, supra, at 267; People v Gardner, 202 A.D.2d 956).
Inasmuch as defendant was convicted of the lesser included offense of manslaughter in the first degree under the indictment that charged murder in the second degree, the indictment must be dismissed without prejudice to the People to represent any appropriate charges to another Grand Jury (see, People v Gonzalez, 61 N.Y.2d 633, 635; People v Hall, supra; People v Grant, 197 A.D.2d 910). In view of our decision, we do not address defendant's remaining contention.