People v. Fuller , 602 N.Y.S.2d 287 ( 1993 )

—Judgment unanimously reversed on the law and new trial granted. Memorandum: The absence of defendant from the in-chambers Sandoval hearing deprived him of his constitutional and statutory right to be present at all material stages of his trial (see, US Const 6th, 14th Amends; NY Const, art I, § 6; CPL 260.20; People v Dokes, 79 NY2d 656; People v Kirkland, 188 AD2d 1083; People v Dean, 188 AD2d 1082). We reject the People’s argument that defendant’s presence would have been superfluous (see, People v Gebrosky, 80 NY2d 995; People v Dokes, supra, at 662; People v Kirkland, supra). Also unavailing is the People’s contention that the rule enunciated by the Court of Appeals in People v Dokes (supra) need not be applied retroactively (see, People v Mitchell, 189 AD2d 337, 339, citing People v Alexander, 80 NY2d 801).

Because a new trial is required, we note our disagreement with the trial court’s ruling that cross-examination of defendant regarding his prior conviction for burglary is permissible under both the Molineux and Sandoval doctrines (see, People v Molineux, 168 NY 264; People v Sandoval, 34 NY2d 371). At trial, defendant admitted breaking into a dwelling but offered evidence of his intoxication to negate the element of intent required for the commission of burglary in the second degree (see, Penal Law § 15.25). The People were permitted to inquire into the underlying facts of a prior burglary for the purpose of showing that defendant intended to commit the burglary charged. In our view, the underlying facts of a prior, unrelated burglary had little, if any, probative value with respect to defendant’s intent to commit the present crime (see, People v Crawford, 158 AD2d 353). Further, allowing evidence of the prior crime invited the jury to find the defendant guilty based upon impermissible speculation that he had the propensity to commit burglary (see, People v Crawford, supra; see generally, People v Alvino, 71 NY2d 233; People v Molineux, supra).

Similar reasoning compels the conclusion that the trial court failed to strike a proper balance between the probative worth of defendant’s prior burglary on the issue of credibility and the risk of unfair prejudice to defendant under Sandoval (see, People v Sandoval, supra, at 375; People v Bowles, 132 AD2d 465, 466, lv denied 70 NY2d 798; People v Riddell, 115 AD2d 986, 987). Because of the similarity of the prior burglary to the present charge, the minimal probative value of the conviction was clearly outweighed by its prejudicial impact (see, People v Bowles, supra). (Appeal from Judgment of Cattaraugus County Court, Kelly, J.—Burglary, 2nd Degree.) Present—Callahan, J. P., Green, Fallon, Boomer and Davis, JJ.