Opinion
February 3, 1995
Appeal from the Supreme Court, Erie County, Doyle, J.
Present — Denman, P.J., Fallon, Wesley, Doerr and Boehm, JJ.
Judgment unanimously reversed on the law, new trial granted on count two of indictment and count one of indictment dismissed without prejudice to the People to re-present any appropriate charges under count one to another Grand Jury. Memorandum: We reserved decision in this matter (People v. Johnson, 206 A.D.2d 874) and remitted the matter to Supreme Court for a reconstruction hearing (see, People v. Mitchell, 189 A.D.2d 337; see generally, People v Odiat, 82 N.Y.2d 872). The evidence adduced at the reconstruction hearing established that defendant was not present during the Sandoval conference conducted in chambers. Because the court ruled that defendant could be cross-examined regarding two prior convictions, it cannot be said that defendant's presence at the Sandoval conference would have been superfluous (see, People v Favor, 82 N.Y.2d 254, rearg denied 83 N.Y.2d 801). Reversal is therefore required (see, People v. Dokes, 79 N.Y.2d 656). Inasmuch as defendant was convicted of the lesser included offense of manslaughter in the first degree under count one of the indictment, that count must be dismissed without prejudice to the People to represent any appropriate charges under that count to another Grand Jury (see, People v. Gonzalez, 61 N.Y.2d 633, 635; People v. Jackson, 167 A.D.2d 893, 894). Finally, we have reviewed the remaining issues and conclude that they are without merit.