People v. Pitsley

Appeal from a judgment of the Oswego County Court (John J. *842Elliott, J.), rendered October 30, 2001. The appeal was held by this Court by order entered December 30, 2002, decision was reserved and the matter was remitted to the Oswego County Court for further proceedings in accordance with a memorandum (300 AD2d 1010 [2002]). The proceedings were held and completed before Walter W Hafner, Jr., J.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously reversed on the law and a new trial is granted.

Memorandum: Upon the reconstruction hearing directed by our order in People v Pitsley (300 AD2d 1010 [2002]), County Court concluded that the People failed to meet their burden of proving that defendant was present at, in that he was able to hear, the Sandoval conference conducted by the trial court at the bench and off the record. The hearing record supports the court’s conclusion, and thus, “[b]eeause the Sandoval ruling was not entirely in defendant’s favor, the judgment of conviction must be reversed” and a new trial granted (People v James, 252 AD2d 979, 980 [1998], lv denied 92 NY2d 1033 [1998]; see People v Favor, 82 NY2d 254, 267 [1993], rearg denied 83 NY2d 801 [1994]; People v Goodman, 284 AD2d 928 [2001]). Present—Green, J.P, Wisner, Hurlbutt and Gorski, JJ.