People v. Baxter

226 A.D.2d 1116, 642 N.Y.S.2d 824, 1996 N.Y. App. Div. LEXIS 5617

Opinion

Case held, decision reserved and matter remitted to Onondaga County Court for further proceedings in accordance with the following Memorandum: When this appeal was previously before us, we held the case, reserved decision and remitted the matter for a reconstruction hearing to determine whether defendant was present at an in-chambers Sandoval hearing (People v Baxter, 216 AD2d 931). The testimony at the reconstruction hearing was sharply conflicting on the issue of defendant’s presence. County Court, however, made neither findings of fact nor a determination whether defendant was present at the Sandoval hearing. "Resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the hearing court, which saw and heard the witnesses” (People v Michalek, 218 AD2d 750, 751, Iv denied 86 NY2d 874). We, therefore, reserve decision and remit the matter to Onondaga County Court to make findings of fact and a determination whether defendant was present at the Sandoval hearing (see, People v Sharpe, 225 AD2d 1075; People v Ireland, 222 AD2d 1075; People v Miller, 221 AD2d 1001; cf., People v James, 221 AD2d 963). (Resubmission of Appeal from Judgment of Onondaga County Court, Mulroy, J.—Rape, 1st Degree.) Present—Green, J. P., Lawton, Wesley, Doerr and Boehm, JJ.