Opinion
July 11, 1991
Appeal from the Supreme Court, Bronx County (William T. Martin, J.).
By order, entered April 9, 1991, we held this appeal in abeyance and remanded for an evidentiary hearing, as to whether defendant was present at the Sandoval Hearing ( 172 A.D.2d 230).
Following an investigation, by defense counsel and the office of the District Attorney, those parties filed with this Court, a stipulation, executed by them, dated June 11, 1991, reflecting that defendant was "absent from the courtroom during the Sandoval Hearing on March 22, 1988, which preceded his trial". Specifically, that stipulation states, in paragraph 1: "The `pen register' kept by the Department of Corrections in Bronx Supreme Court, which shows when any defendant is taken from the centrally located `pens' to a courtroom, shows that appellant was produced in court no earlier than 12:05 P.M. on March 22, 1988. The transcript of the Sandoval hearing makes clear that the hearing was concluded before noon on that date (pp. 7-8)."
Since we find, based upon that stipulation, that defendant was unequivocally absent, without waiver (cf., People v Jordan, 174 A.D.2d 490), from the Sandoval Hearing (People v Sandoval, 34 N.Y.2d 371), we further find that his due process right to be personally present at all material stages of the trial (see, People v Mehmedi, 69 N.Y.2d 759, 760; CPL 260.20) was violated.
Accordingly we reverse, and remand for a new trial.
Concur — Sullivan, J.P., Rosenberger, Ross, Asch and Smith, JJ.