People v. Restifo

47 A.D.2d 792, 366 N.Y.S.2d 66, 1975 N.Y. App. Div. LEXIS 9107

Opinion

Appeal from a judgment of the County Court .of Albany-County, rendered October 16, 1972, upon a verdict convicting defendant of the crime of grand larceny in the third degree, a. felony.. When this case was previously before us (People v. Res tifo, 44. A D 2d 870), we withheld determination of the appeal and remitted the matter to .the — County. Court, Albany County, for a hearing on the issue of whether defendant had been personally present at the time a suppression hearing had be6h held. After a hearing, the trial court has now found that the defendant was not present 'at the time of the suppression hearing on September 20, 1972. This determination is supported by the evidence in. the record. A. suppression hearing is part of the trial at which the defendant must be present. Since the defendant was absent from the hearing, his' conviction must be reversed. (People v. Anderson, 16 N Y 2d 282.) Judgment reversed, On the law and the facts, and a new trial ordered.. Herlihy, P. J<,'Greenblott, Swéeney, Main and Reynolds, JJ.. concur.,