People v. Rodriguez

Judgment unanimously reversed on the law and facts and new trial granted. Memorandum: Following a reconstruction hearing (see, People v Mitchell, 189 AD2d 337), County Court found that Sandoval proceedings had been held in chambers outside of defendant’s presence. Consequently, reversal of defendant’s conviction is required (see, People v Dokes, 79 NY2d 656), unless the record reveals that the court’s Sandoval ruling was wholly favorable to defendant (see, People v Odiat, 82 NY2d 872, 874; People v Favor, 82 NY2d 254, 268, reargument denied 83 NY2d 801). We credit the testimony of defendant’s trial attorney at the reconstruction hearing that the court’s Sandoval ruling permitted the prosecutor to cross-examine defendant about a prior drug conviction. Thus, the Sandoval ruling was not wholly favorable to defendant and reversal is required. We note, however, that the better practice is for the Judge who presides at the reconstruction hearing to make a factual finding concerning the content of the Sandoval ruling. (Appeal from Judgment of Monroe County Court, Maloy, J.—Criminal Sale Controlled Substance, 1st Degree.) Present—Green, J. P., Fallon, Callahan, Doerr and Davis, JJ.