People v. Pitsley

—Appeal from a judgment of Oswego County Court (Elliott, J.), entered October 1, 2001, convicting defendant after a jury trial of attempted burglary in the third degree.

It is hereby ordered that the case is held, the decision is reserved and the matter is remitted to Oswego County Court for further proceedings in accordance with the following memorandum: On appeal from a judgment convicting him following a jury trial of attempted burglary in the third degree (Penal Law §§ 110.00, 140.20), defendant contends that reversal is required because County Court conducted the Sandoval conference at the bench, outside of defendant’s presence. We hold the case, reserve decision ánd remit the matter to Oswego County Court to determine, following a reconstruction hearing, whether the Sandoval conference was conducted outside of defendant’s presence, i.e., whether defendant was able to hear the Sandoval conference conducted at the bench and off the record (see generally People v Goodman, 284 AD2d 928; People v James, 252 AD2d 979, Iv denied 92 NY2d 1033; People v Sharpe, 241 AD2d 977, Iv denied 91 NY2d 880; cf. People v Torres, 267 AD2d 261, Iv denied 94 NY2d 885; People v Anderson, 253 AD2d 636, 637, Iv denied 92 NY2d 1027). At the reconstruction hearing, the People will have the burden of proof by a preponderance of the evidence (see People v Terry, 225 AD2d 1058, Iv denied 88 NY2d 886; cf. Torres, 267 AD2d at 261-262).

All concur except Wisner, J., who dissents and votes to affirm in the following memorandum.