Opinion
April 15, 1994
Appeal from the Monroe County Court, Marks, J.
Present — Denman, P.J., Balio, Fallon, Doerr and Davis, JJ.
Case held, decision reserved, and matter remitted to Monroe County Court for further proceedings in accordance with the following Memorandum: On appeal from a conviction of reckless endangerment in the first degree and assault in the second degree, defendant argues that reversal is required because he was not present at a Ventimiglia hearing (see, People v Ventimiglia, 52 N.Y.2d 350) or at a Sandoval hearing (see, People v Sandoval, 34 N.Y.2d 371). Defendant has the right to be present at a Ventimiglia hearing and violation of that right requires reversal even in the absence of timely objection (see, People v Spotford, 196 A.D.2d 179). County Court's ruling was not favorable to defendant, so we cannot conclude that his presence at the Ventimiglia hearing would have been superfluous (see, People v Favor, 82 N.Y.2d 254). Because the record is not conclusive on the issue of defendant's absence from the in-chambers Ventimiglia hearing, we remit the matter for a reconstruction hearing (see, People v Mitchell, 189 A.D.2d 337).
Defendant likewise has the right to be present at a Sandoval hearing (see, People v Dokes, 79 N.Y.2d 656). Reversal is required unless the trial court's Sandoval ruling was totally favorable to defendant, thereby rendering superfluous his presence at the Sandoval hearing (see, People v Favor, supra). We cannot determine from this record whether defendant was absent from the Sandoval hearing or what ruling County Court made on the Sandoval motion. We reject defendant's suggestion that we decide those issues on the record of a reconstruction hearing held in the case of a codefendant (see, People v Dincher, 201 A.D.2d 892). The testimony adduced at that hearing was not conclusive on the issues of defendant's presence or the substance of County Court's ruling, nor were the People given notice at the time of that hearing that defendant's absence from the Sandoval hearing was at issue. Upon remittal, those issues must also be resolved.
We have examined defendant's remaining argument and find it to be without merit (see, People v Fratta, 83 N.Y.2d 771; People v Davis, 190 A.D.2d 987; People v Doe, 186 A.D.2d 1036, lv denied 81 N.Y.2d 788).