People v. Baxter

—Judgment unanimously affirmed. Memorandum: We reserved decision and remitted this matter to Onondaga County Court to make findings of fact and a determination whether defendant was present at the in-chambers Sandoval hearing (People v Baxter, 226 AD2d 1116). The testimony at the reconstruction hearing supports the court’s determination that defendant was present at the hearing (see, People v Terry, 225 AD2d 1058, lv denied 88 NY2d 886).

The contention that trial counsel was ineffective in failing properly to move for dismissal of the indictment was not raised when the appeal was initially heard (People v Baxter, 216 AD2d *933931), and it may not be raised for the first time following our remittal for a reconstruction hearing (see, People v Cameron, 209 AD2d 159, 160). (Resubmission of Appeal from Judgment of Onondaga County Court, Mulroy, J.—Rape, 1st Degree.) Present—Green, J. P., Lawton, Wesley, Doerr and Boehm, JJ.