People v. Wiley

—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 *940Appeal from Judgment of Onondaga County Court, Cunningham, J. — Sodomy, 1st Degree.) Present — Green, J. P., Lawton, Callahan, Doerr and Boehm, JJ.