People v. Mitchell

—Judgment unanimously reversed on the law and new trial granted. Memorandum: When this appeal was previously before our Court, we reserved decision and remitted the matter to Niagara County Court for a reconstruction hearing to determine what transpired at the Sandoval conference, including whether defendant was present (People v Mitchell', 189 AD2d 337 ). The record of the reconstruction hearing establishes that defendant was not present during the Sandoval conference conducted in the Judge’s chambers, where the court ruled that the People could cross-examine defendant about a prior criminal conviction if he testified.

Defendant’s absence from the Sandoval conference deprived defendant of his right to be present at all material stages of the proceedings against him (see, People v Dokes, 79 NY2d 656 , 662; see also, People v Cruz, 81 NY2d 738 ; People v Gebrosky, 80 NY2d 995 ; People v Hall, 201 AD2d 891 ; People v Dincher, 201 AD2d 892 ). Moreover, because the court’s in-chambers Sandoval ruling was not wholly favorable to defendant (see, People v Michalek, 82 NY2d 906 , 907; People v Favor, 82 NY2d 254 , 267), defendant’s absence from that conference cannot be viewed as "superfluous” (People v Odiat, 82 NY2d 872 , 874; see, People v Favor, supra; People v Taylor, 201 AD2d 905 ). (Resubmission of Appeal from Judgment of Niagara County Court, Hannigan, J.—Robbery, 1st Degree.) Present—Pine, J. P., Lawton, Callahan and Davis, JJ.