Opinion
May 27, 1994
Appeal from the Niagara County Court, Hannigan, J.
Present — Pine, J.P., Lawton, Callahan and Davis, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: When this appeal was previously before our Court, we reserved decision and remitted the matter to Niagara County Court for a reconstruction hearing to determine what transpired at the Sandoval conference, including whether defendant was present (People v. Mitchell, 189 A.D.2d 337). The record of the reconstruction hearing establishes that defendant was not present during the Sandoval conference conducted in the Judge's chambers, where the court ruled that the People could cross-examine defendant about a prior criminal conviction if he testified.
Defendant's absence from the Sandoval conference deprived defendant of his right to be present at all material stages of the proceedings against him (see, People v. Dokes, 79 N.Y.2d 656, 662; see also, People v. Cruz, 81 N.Y.2d 738; People v. Gebrosky, 80 N.Y.2d 995; People v. Hall, 201 A.D.2d 891; People v. Dincher, 201 A.D.2d 892). Moreover, because the court's in-chambers Sandoval ruling was not wholly favorable to defendant (see, People v. Michalek, 82 N.Y.2d 906, 907; People v. Favor, 82 N.Y.2d 254, 267), defendant's absence from that conference cannot be viewed as "superfluous" (People v. Odiat, 82 N.Y.2d 872, 874; see, People v. Favor, supra; People v. Taylor, 201 A.D.2d 905).