Opinion
June 8, 2001.
(Appeal from Judgment of Monroe County Court, Marks, J. — Robbery, 1st Degree.)
PRESENT: GREEN, J.P., PINE, HURLBUTT, KEHOE AND BURNS, JJ.
Case held, decision reserved and matter remitted to Monroe County Court for further proceedings in accordance with the following Memorandum:
County Court erred in conducting the suppression hearing in the absence of defendant without making inquiry into the circumstances of his absence or reciting on the record the basis for its determination that his absence was deliberate ( see, People v. McCullough, 209 A.D.2d 965; see also, People v. Brooks, 75 N.Y.2d 898, 899, mot to amend remittitur granted 76 N.Y.2d 746). We therefore remit the matter to Monroe County Court to conduct a new suppression hearing and to "make findings of fact essential to the determination thereof" (CPL 710.60; see, People v. McCullough, supra).
The court did not abuse its discretion in declining to impose sanctions upon the People based upon their failure to comply with the procedures set forth in Penal Law § 450.10 before returning the stolen wallet to complainant ( see, People v. Johnson, 262 A.D.2d 1004, 1005, lv denied 93 N.Y.2d 1020; People v. Woodberry, 239 A.D.2d 448, 448-449, lv denied 90 N.Y.2d 912). Contrary to defendant's contention, the verdict is not against the weight of the evidence on the issue of identification ( see, People v. Owens, 275 A.D.2d 905, 906, lv denied 95 N.Y.2d 937, 939). The sentence is not unduly harsh or severe.