People v. Ballard

Judgment unanimously reversed on the law and new trial granted. Memorandum: We reserved decision and remitted this matter to Onondaga County Court for a reconstruction hearing (see, People v Ballard, 189 AD2d 340 , appeal dismissed sub nom. People v Walker, 81 NY2d 1065 ) in accordance with our decision in People v Mitchell ( 189 AD2d 337 , lv dismissed sub nom. People v Walker, 81 NY2d 1065 ; see also, People v Michalek, 82 NY2d 906 ). The record of the reconstruction hearing does not support a finding that defendant was present at the Sandoval conference and, therefore, reversal is required (see, People v Dokes, 79 NY2d 656 , 662; see also, People v Cruz, 81 NY2d 738 ; People v Gebrosky, 80 NY2d 995 ). Contrary to the People’s contention, defendant’s presence would not have been "superfluous” (People v Odiat, 82 NY2d 872 , 874; see, People v Favor, 82 NY2d 254 ).

We have considered defendant’s remaining contentions, including those raised in the pro se supplemental brief, and find them to be without merit. (Resubmission of Appeal from Judgment of Onondaga County Court, Cunningham, J. — Criminal Possession Controlled Substance, 2nd Degree.) Present—