People v. Rose

172 A.D.2d 230, 568 N.Y.S.2d 693, 1991 N.Y. App. Div. LEXIS 4465

Opinion

Appeal from judgment, Supreme Court, Bronx County (William T. Martin, J., at Sandoval Hearing, jury trial, and sentence), entered April 18, 1988, convicting defendant of the crime of rape in the first degree (Penal Law § 130.35 [1]), and sentencing him, as a second violent felony offender, to an indeterminate term of imprisonment of from eight to sixteen years, is unanimously held in abeyance, and the matter remanded to Criminal Term for an evidentiary hearing, as to whether defendant was present at the Sandoval Hearing.

On appeal, defendant contends that his conviction should be reversed, since his due process right, to be personally present at all material stages of the trial (see, People v Mehmedi, 69 NY2d 759, 760 [1987]; CPL 260.20), was violated by his absence, without waiver, from the Sandoval Hearing (People v Sandoval, 34 NY2d 371 [1974]). In view of the fact that our examination of the transcript of the Sandoval Hearing does not clearly indicate whether the defendant was present, we hold the appeal in abeyance, and remand the matter to Criminal Term for a hearing on that issue. Concur—Sullivan, J. P., Rosenberger, Ross, Asch and Smith, JJ.