People v. Brown

268 A.D.2d 439, 701 N.Y.S.2d 619, 2000 N.Y. App. Div. LEXIS 163

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (McDonald, J.), rendered May 7, 1997, convicting him of burglary in the third degree, criminal mischief in the third degree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.

Ordered that the appeal is held in abeyance, and the matter is remitted to the Supreme Court, Queens County, for a reconstruction hearing to determine whether the defendant was present at the Sandoval hearing. The Supreme Court, Queens County, is to file its report with all convenient speed.

It is not clear from the record whether the defendant was present during the off-the-record Sandoval hearing, and the Supreme Court’s Sandoval ruling was not “wholly favorable” to the defendant. Thus, we remit the matter to the Supreme Court for a reconstruction hearing to determine if the defendant was present (see, People v Michalek, 82 NY2d 906; People v Favor, 82 NY2d 254; People v Dokes, 79 NY2d 656; People v Smythe, 216 AD2d 424; People v Bazil, 212 AD2d 622).

We reach no other issue at this juncture. Thompson, J. P., Krausman, H. Miller and Schmidt, JJ., concur.