People v. DeWitt

Appeal by the defendant from a judgment of the Supreme Court, Kings County (DeLury, J.), rendered October 5, 1995, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the appeal is held in abeyance, and the matter is remitted to the Supreme Court, Kings County, for a reconstruction hearing to determine whether the defendant was present at the Sandoval hearing. The Supreme Court, Kings County, is to file its report with all convenient speed.

Because there was no record of the Sandoval hearing, we cannot determine whether the defendant was present for the hearing. Since the defendant’s presence at the Sandoval hearing would not have been merely “ ‘superfluous’ ” because the Sandoval ruling was not “wholly favorable” to him (People v Favor, 82 NY2d 254, 267), this threshold factual issue must be resolved. Therefore, the case is remitted to the Supreme Court, Kings County, for a reconstruction hearing to determine whether or not the defendant was present (see, People v Michalek, 82 NY2d 906; People v Smythe, 216 AD2d 424; People v Bazil, 212 AD2d 622). Bracken, J. P., Rosenblatt, Copertino and Luciano, JJ., concur.