People v. Braithwaite

190 A.D.2d 572, 593 N.Y.S.2d 464, 1993 N.Y. App. Div. LEXIS 1463

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 11, 1993
• Status: Published

Opinion

— Appeal from judgment of the Supreme Court, New York County (Kristin Booth Glen, J., at jury trial, sentence and reconstruction hearing), rendered July 29, 1985, convicting defendant of robbery in the first degree, robbery in the second degree, and criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to concurrent terms of 7-Vi to 15 years, 6 to 12 years and 2-Vi to 5 years, held in abeyance pending reconstruction of Mapp hearing held in Part 83 on May 17,1985.

This Court previously ordered reconstruction of the Mapp hearing. Upon remand, the trial court conducted a reconstruction hearing on October 8, 1991, in defendant’s absence, and without any indication that defendant effectively waived his right to be present. As conceded by the People, the matter must be remanded for a reconstruction hearing at which defendant, in the absence of knowing and voluntary waiver, has the right to be present (People v Mullen, 44 NY2d 1, 5). Concur — Sullivan, J. P., Rosenberger, Wallach and Ross, JJ.