People v. Walker

78 A.D.3d 1671, 912 N.Y.S.2d 366

Opinions

Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.), rendered January 14, 2000. The judgment convicted defendant, upon a jury verdict, of robbery in the first degree (two counts), assault in the first degree (two counts), grand larceny in the fourth degree (two counts), robbery in the second degree, and attempted robbery in the second degree (two counts).

It is hereby ordered that the judgment so appealed from is affirmed.

Memorandum: On a prior appeal, we affirmed the judgment convicting defendant of, inter alia, robbery in the first degree (Penal Law § 160.15 [1], [3]; People v Walker, 292 AD2d 791 [2002], lv denied 98 NY2d 656 [2002]). We subsequently granted defendant’s motion for a writ of error coram nobis on the ground that appellate counsel had failed to raise an issue on appeal that may have merit, i.e., that defendant was denied his right to be present at his Sandoval hearing (People v Walker, 50 AD3d 1629 [2008]; see People v Dokes, 79 NY2d 656, 660-662 [1992]), and we vacated our prior order. We now consider the appeal de novo.

Contrary to the contention of defendant, we conclude that he failed to satisfy his burden of coming forward with substantial evidence establishing his absence from the Sandoval hearing (see People v Foster, 1 NY3d 44, 48 [2003]; People v Carter, 44 AD3d 677, 678 [2007], lv denied 9 NY3d 1031 [2008]; People v Valentine, 7 AD3d 275 [2004], lv denied 3 NY3d 682 [2004]). The court reporter’s failure to document defendant’s presence or lack thereof is insufficient to satisfy defendant’s burden of rebutting the presumption of regularity that attaches to judicial proceedings (see Foster, 1 NY3d at 48; see also People v Andrew, 1 NY3d 546 [2003]). We note that Supreme Court addressed defendant following its Sandoval determination, thereby establishing defendant’s presence in the courtroom for at least a portion of the proceedings, and the record establishes the presence of defendant during the later proceedings on his motion to modify the court’s Sandoval ruling. We further conclude that a reconstruction hearing is unnecessary. “Reconstruction hearings should not be routinely ordered where, as here, the record is simply insufficient to establish facts necessary to meet the defendant’s burden of showing that he [or she] was absent , from a material stage of the trial” (Foster, 1 NY3d at 49; see Valentine, 7 AD3d 275).

All concur except Lindley, J., who votes to reverse in accord: anee with the following memorandum.