Opinion
April 15, 1994
Appeal from the Onondaga County Court, Cunningham, J.
Present — Green, J.P., Lawton, Callahan, Doerr and Boehm, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: We reserved decision and remitted this matter to Onondaga County Court for a reconstruction hearing (see, People v Wiley, 193 A.D.2d 1062, lv dismissed 82 N.Y.2d 728) in accordance with our decision in People v Mitchell ( 189 A.D.2d 337; see also, People v Michalek, 82 N.Y.2d 906). The record of the reconstruction hearing does not support a finding that defendant was present at the Sandoval hearing and, therefore, reversal is required (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).
Contrary to the People's contention, defendant's presence would not have been "superfluous" (People v Odiat, 82 N.Y.2d 872, 874; see, People v Favor, 82 N.Y.2d 254).