Opinion
March 8, 1996
Appeal from the Supreme Court, Onondaga County, Gorman, J.
Present — Denman, P.J., Lawton, Wesley, Balio and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: We reserved decision and remitted this matter to Supreme Court for a reconstruction hearing ( People v Terry, 216 A.D.2d 943) in accordance with our decision in People v Mitchell ( 189 A.D.2d 337). Preliminarily, we address two necessary issues: (1) who has the burden at a reconstruction hearing to establish whether defendant was present at a Sandoval conference, and (2) what standard of proof should be applied at that hearing. The People have the constitutional burden of proving defendant's guilt beyond a reasonable doubt with respect to every element of the crime charged ( People v Newman, 46 N.Y.2d 126, 128; see, Carella v California, 491 U.S. 263, 265, reh denied 492 U.S. 937; In re Winship, 397 U.S. 358, 364). However, in ancillary proceedings involving factual issues collateral to the issue of defendant's guilt, such as competence to stand trial or, as here, defendant's presence at a Sandoval conference, the People have the burden of establishing the facts by a preponderance of the evidence ( see, Matter of Francis S., 87 N.Y.2d 554; People v Giordano, 87 N.Y.2d 441; People v Wright, 124 A.D.2d 1015, lv denied 69 N.Y.2d 751; People v Santos, 43 A.D.2d 73, 75). Applying that standard, we conclude that the record of the reconstruction hearing fully supports the hearing court's conclusion that defendant was present and able to participate meaningfully at the Sandoval conference.