People v. DiMartino

Appellate Division of the Supreme Court of New York

People v. DiMartino

203 A.D.2d 934, 611 N.Y.S.2d 412

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 15, 1994

StatusPublished

Cited by3 cases

This text of 203 A.D.2d 934 (People v. DiMartino) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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People v. DiMartino, 203 A.D.2d 934, 611 N.Y.S.2d 412 (N.Y. Ct. App. 1994).

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Opinion

—Judgment unanimously reversed on the law and indictment dismissed without prejudice to the People to re-present any appropriate charges to another Grand Jury. Memorandum: The record of the reconstruction hearing (see, People v Mitchell, 189 AD2d 337) reveals that defendant was not present in chambers at [935]*935the Sandoval conference. The record further reveals that the court ruled that the People could cross-examine defendant about two prior convictions if she testified. Reversal is required because defendant was not present at a material stage of the trial (see, People v Dokes, 79 NY2d 656, 662; see also, People v Favor, 82 NY2d 254; People v Gebrosky, 80 NY2d 995; People v Hall, 201 AD2d 891; People v Dincher, 201 AD2d 892). The trial court’s recitation of the gist of its Sandoval ruling in open court in defendant’s presence did not constitute a de novo hearing (cf., People v Cole, 202 AD2d 988; People v Berger, 188 AD2d 1073, lv denied 81 NY2d 881), and did not ameliorate the error (see, People v Favor, supra; People v Hall, supra). Furthermore, we cannot say that defendant’s presence would have been "superfluous” (People v Odiat, 82 NY2d 872, 874; see, People v Michalek, 82 NY2d 906; People v Favor, supra, at 267; People v Gardner, 202 AD2d 956).

Inasmuch as defendant was convicted of the lesser included offense of manslaughter in the first degree under the indictment that charged murder in the second degree, the indictment must be dismissed without prejudice to the People to represent any appropriate charges to another Grand Jury (see, People v Gonzalez, 61 NY2d 633, 635; People v Hall, supra; People v Grant, 197 AD2d 910). In view of our decision, we do not address defendant’s remaining contention. (Appeal from Judgment of Monroe County Court, Egan, J. — Manslaughter, 1st Degree.) Present — Denman, P. J., Balio, Fallon, Doerr and Davis, JJ.

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—Judgment unanimously reversed on the law and indictment dismissed without prejudice to the People to re-present any appropriate charges to another Grand Jury. Memorandum: The record of the reconstruction hearing (see, People v Mitchell, 189 AD2d 337) reveals that defendant was not present in chambers at [935]*935the Sandoval conference. The record further reveals that the court ruled that the People could cross-examine defendant about two prior convictions if she testified. Reversal is required because defendant was not present at a material stage of the trial (see, People v Dokes, 79 NY2d 656, 662; see also, People v Favor, 82 NY2d 254; People v Gebrosky, 80 NY2d 995; People v Hall, 201 AD2d 891; People v Dincher, 201 AD2d 892). The trial court’s recitation of the gist of its Sandoval ruling in open court in defendant’s presence did not constitute a de novo hearing (cf., People v Cole, 202 AD2d 988; People v Berger, 188 AD2d 1073, lv denied 81 NY2d 881), and did not ameliorate the error (see, People v Favor, supra; People v Hall, supra). Furthermore, we cannot say that defendant’s presence would have been "superfluous” (People v Odiat, 82 NY2d 872, 874; see, People v Michalek, 82 NY2d 906; People v Favor, supra, at 267; People v Gardner, 202 AD2d 956).

Inasmuch as defendant was convicted of the lesser included offense of manslaughter in the first degree under the indictment that charged murder in the second degree, the indictment must be dismissed without prejudice to the People to represent any appropriate charges to another Grand Jury (see, People v Gonzalez, 61 NY2d 633, 635; People v Hall, supra; People v Grant, 197 AD2d 910). In view of our decision, we do not address defendant’s remaining contention. (Appeal from Judgment of Monroe County Court, Egan, J. — Manslaughter, 1st Degree.) Present — Denman, P. J., Balio, Fallon, Doerr and Davis, JJ.

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203 A.D.2d 934, 611 N.Y.S.2d 412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dimartino-nyappdiv-1994.

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