Opinion
March 17, 1995
Appeal from the Oneida County Court, Burke, J., Mulroy, J., Auser, J.
Present — Pine, J.P., Fallon, Wesley, Balio and Boehm, JJ.
Judgment unanimously reversed on the law, motion to suppress granted and matter remitted to Oneida County Court for further proceedings in accordance with the following Memorandum: A reconstruction hearing was held to determine whether defendant was present at the Sandoval hearing conducted during his trial. The evidence adduced at the hearing established that defendant was not present during the Sandoval conference conducted at the bench. The subsequent recitation of the Sandoval ruling in defendant's presence does not constitute a de novo hearing (see, People v. Geddes, 207 A.D.2d 987). The presence of defendant at the conference cannot be deemed superfluous because the Sandoval ruling was not wholly favorable to him (see, People v. Favor, 82 N.Y.2d 254, 267, rearg denied 83 N.Y.2d 801). Therefore, reversal is required (see, People v. Dokes, 79 N.Y.2d 656).
Because a new trial is required, we note that the court also erred in denying the motion to suppress the identification testimony of witness Darryl Lonero. There were no exigent circumstances to justify the police station showup and the viewing by the witness of defendant alone in a "cage" at the police station was unduly suggestive in the extreme. Evidence of the showup identification therefore must be suppressed (see, People v. Riley, 70 N.Y.2d 523). A new Wade hearing is required to determine whether there was an independent basis for the in-court identification of defendant (see, People v. Burts, 78 N.Y.2d 20).