People v. Goodman

284 A.D.2d 928, 727 N.Y.S.2d 920, 2001 N.Y. App. Div. LEXIS 5877

Opinion

—Judgment unanimously reversed on the law and new trial granted on count one of indictment. Memorandum: Defendant appeals from a judgment convicting him following a jury trial of robbery in the second degree (Penal Law § 160.10 [1]). We previously held the case, reserved decision and remitted the matter to Supreme Court for a reconstruction hearing to determine whether defendant was present at the Sandoval hearing held at the conclusion of jury selection (People v Goodman, 275 AD2d 969). Upon remittal, the court concluded that the People failed to meet their burden of proving by a preponderance of the evidence that defendant was present (see, People v Terry, 225 AD2d 1058, lv denied 88 NY2d 886). The record supports the court’s conclusion. Because defendant’s presence at the Sandoval proceeding would not have been superfluous, the judgment of conviction must be reversed and a new trial granted on count one of the indictment (see, People v Douglas, 269 AD2d 826). (Resubmission of Appeal from Judgment of Supreme Court, Erie County, Tills, J. — Robbery, 2nd Degree.) Present — Pigott, Jr., P. J., Hayes, Hurlbutt, Scudder and Law-ton, JJ.