Opinion
October 1, 1993
Appeal from the Cattaraugus County Court, Kelly, J.
Present — Callahan, J.P., Green, Fallon, Boomer and Davis, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: The absence of defendant from the in-chambers Sandoval hearing deprived him of his constitutional and statutory right to be present at all material stages of his trial (see, US Const 6th, 14th Amends; N Y Const, art I, § 6; CPL 260.20; People v. Dokes, 79 N.Y.2d 656; People v. Kirkland, 188 A.D.2d 1083; People v. Dean, 188 A.D.2d 1082). We reject the People's argument that defendant's presence would have been superfluous (see, People v. Gebrosky, 80 N.Y.2d 995; People v Dokes, supra, at 662; People v. Kirkland, supra). Also unavailing is the People's contention that the rule enunciated by the Court of Appeals in People v. Dokes (supra) need not be applied retroactively (see, People v. Mitchell, 189 A.D.2d 337, 339, citing People v. Alexander, 80 N.Y.2d 801).
Because a new trial is required, we note our disagreement with the trial court's ruling that cross-examination of defendant regarding his prior conviction for burglary is permissible under both the Molineux and Sandoval doctrines (see, People v Molineux, 168 N.Y. 264; People v. Sandoval, 34 N.Y.2d 371). At trial, defendant admitted breaking into a dwelling but offered evidence of his intoxication to negate the element of intent required for the commission of burglary in the second degree (see, Penal Law § 15.25). The People were permitted to inquire into the underlying facts of a prior burglary for the purpose of showing that defendant intended to commit the burglary charged. In our view, the underlying facts of a prior, unrelated burglary had little, if any, probative value with respect to defendant's intent to commit the present crime (see, People v. Crawford, 158 A.D.2d 353). Further, allowing evidence of the prior crime invited the jury to find the defendant guilty based upon impermissible speculation that he had the propensity to commit burglary (see, People v. Crawford, supra; see generally, People v. Alvino, 71 N.Y.2d 233; People v. Molineux, supra).
Similar reasoning compels the conclusion that the trial court failed to strike a proper balance between the probative worth of defendant's prior burglary on the issue of credibility and the risk of unfair prejudice to defendant under Sandoval (see, People v. Sandoval, supra, at 375; People v. Bowles, 132 A.D.2d 465, 466, lv denied 70 N.Y.2d 798; People v. Riddell, 115 A.D.2d 986, 987). Because of the similarity of the prior burglary to the present charge, the minimal probative value of the conviction was clearly outweighed by its prejudicial impact (see, People v. Bowles, supra).