Opinion
December 29, 1993
Appeal from the Monroe County Court, Connell, J.
Present — Denman, P.J., Pine, Lawton, Doerr and Davis, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: We reserved decision in this matter (see, People v Howard, 189 A.D.2d 340) and remitted it to County Court for a reconstruction hearing (see, People v Mitchell, 189 A.D.2d 337; see generally, People v Odiat, 82 N.Y.2d 872). We determined that the remedy of reconstruction was implicitly authorized by the Court of Appeals in People v Mitchell ( 80 N.Y.2d 519) and directed the court upon remittitur to expand the record to reflect what transpired at the Sandoval conference and whether defendant was present.
On remittitur the People conceded that defendant was not present at the Sandoval conference. The only remaining questions were whether defendant was prejudiced by his absence from the conference and whether his presence would have been superfluous (see, People v Odiat, supra; People v Dokes, 79 N.Y.2d 656). In People v Favor ( 82 N.Y.2d 254), the Court of Appeals rejected a case-specific "prejudice" test to determine whether a defendant's presence at a conference was superfluous and held that such test was "inconsistent with [the] rationale in Dokes, which stressed that prejudice is inherent when a defendant is deprived of the opportunity for meaningful participation at a `material' stage of trial" (People v Favor, supra, at 267; see, People v Odiat, supra). In the companion case to Favor, the court held that a defendant's presence at a Sandoval conference would have been superfluous where the outcome of the conference was "wholly favorable" to the defendant (People v Smith, 82 N.Y.2d 254, 268; see, People v Odiat, supra).
In light of the holdings in Favor and Smith, reversal is required. Defendant's presence would not have been superfluous because the court determined that defendant could be questioned on three prior convictions.
We have considered defendant's other arguments and conclude that they are without merit.