Majority
p. 839[962 NE2d 261, 938 NYS2d 838] The People of the State of New York, Respondent, v Frederick E. Walker, Appellant. Decided December 20, 2011
APPEARANCES OF COUNSEL
James S. Hinman, P.C., Rochester (James S. Hinman of counsel), for appellant.
Michael C. Green, District Attorney, Rochester (Stephen X. O’Brien of counsel), for respondent.
OPINION OF THE COURT
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order
p. 840
modified and case remitted to Supreme Court, Monroe County, for further proceedings, and as so modified, affirmed. We conclude that on this record defendant satisfied his burden of showing that a reconstruction hearing is necessary to determine whether he was present during the Sandoval hearing. Upon remittal, if it is determined that defendant was not present during the Sandoval hearing, a new trial must be ordered; if it is determined that defendant was present, the judgment of conviction should be amended to reflect that result.
Concur: Chief Judge Lippman and Judges Cipajrick, Gbaffeo, Read, Smith and Jones. Taking no part: Judge Pigott.