Opinion
January 19, 1993
Appeal from the Supreme Court, Queens County (Browne, J.).
Ordered that the judgment is affirmed.
During the course of the trial, the victim testified that she had struck her assailant in the head with a portable radio, drawing blood. The defendant, who testified on his own behalf, claimed that he had sustained a cut on his forehead when he was struck by an opening door. The defendant also denied ever telling anyone that he had sustained the injury by falling down. The People's rebuttal witness, a police officer, testified that on the date of the arrest, the defendant stated that he had received the cut as the result of a fall.
The defendant contends that he was denied a fair trial by the admission of the rebuttal testimony because the statement attributed to the defendant had not been previously disclosed as required by CPL 240.20 (1) (a). However, the record does not reveal that the prosecutor was aware of the challenged statement at the time of the defendant's discovery demand or that he learned of the statement at any time subsequent to the original demand but prior to the trial (see, CPL 240.20). Furthermore, the record indicates that the People had no intention of eliciting the challenged statement as part of their case-in-chief, and decided to do so only after the defendant had offered an alternative explanation for his head wound and had denied ever telling the police officer that he had sustained the injury by falling. Under these circumstances, it was proper for the People to call the officer to whom the statement was made as a rebuttal witness (see, People v. Foster, 182 A.D.2d 701; People v. Connor, 157 A.D.2d 739). The challenged statement was not collateral, but, instead, was directly relevant to the complainant's identification of the defendant as her assailant (see, People v. Wise, 46 N.Y.2d 321; People v. Knight, 173 A.D.2d 736, 737, affd 80 N.Y.2d 845; People v. Beavers, 127 A.D.2d 138, 141). Therefore, the rebuttal testimony was properly admitted for impeachment purposes.
The defendant also contends that he was denied due process of law because he was not present at the Sandoval hearing (see, People v. Sandoval, 34 N.Y.2d 371) conducted in chambers. While a criminal "defendant has a fundamental right to be present at all material stages of [the] trial" (People v. Mehmedi, 69 N.Y.2d 759, 760; People v. Williams, 186 A.D.2d 161), which includes presence at a Sandoval hearing (see, People v. Dokes, 79 N.Y.2d 656; People v. Jenkins, 157 A.D.2d 854), the record does not indicate that any dispute concerning the defendant's criminal record was raised at the hearing (see, People v. Ray, 184 A.D.2d 596; cf., People v. Jenkins, supra) or that the defendant's absence prejudiced him in any way or otherwise compromised his ability to defend himself at the trial (People v. Ray, supra; People v Eske, 179 A.D.2d 770, 771). More importantly, the error in conducting the hearing in his absence was cured when, on the second day of trial, before any testimony was taken, the trial court noted that, in light of "a requirement" which had just come to the trial court's attention, "that the defendant must be present" at a Sandoval hearing, the minutes from the Sandoval hearing were read into the record in the defendant's presence, and the defendant was given an opportunity to consult with his attorney and to raise any objections with respect to any Sandoval issues. Thompson, J.P., Balletta, Ritter and Santucci, JJ., concur.