People v. Wiley — 203 A.D.2d 939

Majority

p. 939

The People of the State of New York, Respondent, v Nicolas Wiley, Appellant.

[612 NYS2d 1023]

—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 Wiley, 193 AD2d 1062 , lv dismissed 82 NY2d 728 ) in accordance with our decision in People v Mitchell ( 189 AD2d 337 ; 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 hearing 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 ). (Resubmission of

p. 940

Appeal from Judgment of Onondaga County Court, Cunningham, J. — Sodomy, 1st Degree.) Present — Green, J. P., Lawton, Callahan, Doerr and Boehm, JJ.

Cases cited

People v. Mitchell 189 AD2d 337 N.Y. App. Div. 1993-04-14 p. 939
People v. Michalek 82 NY2d 906 N.Y. 1994-01-11 p. 939
People v. Dokes 79 NY2d 656 N.Y. 1992-06-11 at 662 p. 939
People v. Cruz 81 NY2d 738 N.Y. 1992-12-17 p. 939
People v. Gebrosky 80 NY2d 995 N.Y. 1992-11-19 p. 939
People v. Odiat 82 NY2d 872 N.Y. 1993-12-16 at 874 p. 939
People v. Favor 82 NY2d 254 N.Y. 1993-10-19 p. 939