Opinion
September 30, 1994
Appeal from the Onondaga County Court, Elliott, J.
Present — Green, J.P., Balio, Wesley, Callahan and Boehm, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: Defendant's absence from the in-chambers Sandoval hearing prior to defendant's retrial requires reversal. The People contend that reversal is not warranted because defendant was present at the Sandoval hearing conducted at his first trial and he made no request for a de novo hearing except with respect to a Federal conviction after his first trial. Regardless of whether defendant requested a de novo hearing, the Sandoval ruling rendered before the retrial differed from and was less favorable than the Sandoval ruling rendered before the first trial. Any benefit defendant may have obtained from his presence at the first hearing did not carry over to the second hearing (see, People v. Dokes, 79 N.Y.2d 656, 659). Because the court's ruling prior to the retrial was not wholly favorable to defendant, reversal is required (see, People v. Odiat, 82 N.Y.2d 872, 874; People v. Favor, 82 N.Y.2d 254).
The evidence, viewed in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 621), is sufficient to support the conviction, and the verdict is not contrary to the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495).
In view of our determination, we do not reach defendant's remaining contentions.