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 *840modified 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.