Opinion
March 31, 1999
Appeal from Judgment of Supreme Court, Erie County, Burns, J. — Criminal Possession Controlled Substance, 3rd Degree.
Case held, decision reserved and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: The record does not indicate whether defendant was present at a Ventimiglia proceeding held off the record. Because the outcome of the proceeding was not entirely favorable to defendant, we cannot conclude from this record that defendant's presence would have been superfluous ( see, People v. Favor, 82 N.Y.2d 254, 267, rearg denied 83 N.Y.2d 801). We therefore remit the matter to Supreme Court for a reconstruction hearing ( see, People v. Michalek, 82 N.Y.2d 906, 907; People v. Baxter, 216 A.D.2d 931; People v. Johnson, 206 A.D.2d 874, 875).
Present — Hayes, J. P., Wisner, Pigott, Jr., Scudder and Callahan, JJ.