Opinion
June 24, 1997
Supreme Court, New York County (Paul P.E. Bookson, J.).
Prior to the commencement of jury selection, the trial court indicated that it wished "to go on the record with respect to the Sandoval as to each defendant" and proceeded to announce its ruling. Counsel for appellant thereupon stated "I just want the record to be clear that the Sandoval was done at the bench off the record, and that the defendants were not here for that, over objection." Neither the court nor the prosecutor responded to this remark.
Contrary to the People's claim, the record sufficiently reveals that defendant did not participate in the Sandoval hearing, thus requiring a reversal of defendant's conviction ( People v Salda, 193 A.D.2d 548; People v. Garcia, 198 A.D.2d 4). At no time did either the prosecutor or the court challenge defense counsel's claim that the hearing had been conducted in defendant's absence, at the bench and over counsel's objection. Furthermore, nothing in the record creates any ambiguity regarding the issue ( compare, People v. Smith, 208 A.D.2d 455, lv denied 84 N.Y.2d 1039).
Concur — Wallach, J.P., Rubin, Williams and Andrias, JJ.