Summary
finding that defense counsel's consent to defendant's absence did not permit an inference of knowing and voluntary waiver of the right to be present at a Sandoval hearing
Summary of this case from Clark v. StinsonOpinion
October 1, 1993
Appeal from the Cattaraugus County Court, Kelly, J.
Present — Denman, P.J., Balio, Fallon, Doerr and Davis, JJ.
Judgment unanimously reversed on the law and indictment dismissed without prejudice to the People to re-present any appropriate charges under counts one, three, four and five of indictment to another Grand Jury. Memorandum: Defendant had an absolute right to be present at the Sandoval hearing (see, People v. Sandoval, 34 N.Y.2d 371) that was conducted in his absence (see, People v. Cruz, 81 N.Y.2d 738, 739; People v Beasley, 80 N.Y.2d 981, 982, rearg denied 81 N.Y.2d 759; People v Gebrosky, 80 N.Y.2d 995, 996; People v. Dokes, 79 N.Y.2d 656, 662). Defense counsel's consent to defendant's absence does not permit an inference that defendant knowingly, voluntarily, and intelligently relinquished his right to be present at the Sandoval hearing (see, People v. Parker, 57 N.Y.2d 136, 140; People v. Chiarenza, 163 A.D.2d 900, lv denied 76 N.Y.2d 892; People v. Gaines, 144 A.D.2d 941; cf., People v. Carey, 187 A.D.2d 942, lv denied 81 N.Y.2d 838). Defense counsel did not tell the court what defendant had been told concerning the nature of his right to be present, nor did the court make an express finding that defendant had validly waived his right to be present (see, People v. Gaines, supra). Inasmuch as defendant was convicted of the lesser included offenses of manslaughter in the second degree under count one of the indictment and three counts of reckless endangerment in the second degree under counts three, four and five, the indictment is dismissed without prejudice to the People to re-present any appropriate charges under those counts to another Grand Jury (see, People v. Gonzalez, 61 N.Y.2d 633, 635; People v. Grant, 197 A.D.2d 910 [decided herewith]). In light of our conclusion, it is unnecessary to reach the remaining issues raised by defendant in his pro se supplemental brief.