People v. Morgan

Full title: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN V. MORGAN…

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: Jan 20, 1994

200 A.D.2d 856 (N.Y. App. Div. 1994)

608 N.Y.S.2d 876

Opinion

January 20, 1994

Appeal from the County Court of Ulster County (Vogt, J.).

White, J.

One of the arguments advanced by defendant on this appeal is that he was not present at the Sandoval hearing which County Court conducted prior to the commencement of his trial. Although the record is silent, the People maintain that defendant was present as evidenced by the affidavit of the court reporter who states that, had defendant not been present, his absence would have been specifically noted in the record.

Under similar circumstances where the record was ambiguous as to whether a defendant was present during a material stage of the trial, we held that due process requires a hearing on the issue of whether the defendant was present (see, People v. Restifo, 44 A.D.2d 870; see also, People v. Michalek, 82 N.Y.2d 906). Accordingly, the determination of this appeal will be withheld and the case will be remitted to County Court for a hearing on the issue of whether defendant was present at the Sandoval hearing.

Mikoll, J.P., Mercure, Crew III and Yesawich Jr., JJ., concur. Ordered that the decision is withheld, and matter remitted to the County Court of Ulster County for further proceedings not inconsistent with this Court's decision.