Opinion
March 27, 1975
Appeal from a judgment of the County Court of Albany County, rendered October 16, 1972, upon a verdict convicting defendant of the crime of grand larceny in the third degree, a felony. When this case was previously before us ( People v. Restifo, 44 A.D.2d 870), we withheld determination of the appeal and remitted the matter to the County Court, Albany County, for a hearing on the issue of whether defendant had been personally present at the time a suppression hearing had been held. After a hearing, the trial court has now found that the defendant was not present at the time of the suppression hearing on September 20, 1972. This determination is supported by the evidence in the record. A suppression hearing is part of the trial at which the defendant must be present. Since the defendant was absent from the hearing, his conviction must be reversed. ( People v. Anderson, 16 N.Y.2d 282. ) Judgment reversed, on the law and the facts, and a new trial ordered. Herlihy, P.J., Greenblott, Sweeney, Main and Reynolds, JJ. concur.