People v. Durda

Case held, decision reserved and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: The record does not indicate whether defendant was present at a Ventimiglia proceeding held off the record. Because the outcome of the proceeding was not entirely favorable to defendant, we cannot conclude from this record that defendant’s presence would have been superfluous (see, People v Favor, 82 NY2d 254 , 267, rearg denied 83 NY2d 801 ). We therefore remit, the matter to Supreme Court for a reconstruction hearing (see, People v Michalek, 82 NY2d 906 , 907; People v Baxter, 216 AD2d 931 ; People v Johnson, 206 AD2d 874 , 875). (Appeal from Judgment of Supreme Court, Erie County, Burns, J. — Criminal Possession Controlled Substance, 3rd Degree.) Present — Hayes, J. P., Wisner, Pigott, Jr., Scudder and Callahan, JJ.