Opinion
May 25, 1993
Appeal from the Supreme Court, Bronx County (Arlene R. Silverman, J.).
Unlike our recent decision in People v Odiat ( 191 A.D.2d 183), where the record was ambiguous as to defendant's presence at the Sandoval hearing (see also, People v Rose, 172 A.D.2d 230), there is no question that, in the case at bar, an off the record Sandoval hearing was held at the Bench in defendant's absence. It is now well settled that "except in circumstances where the nature of the defendant's criminal history and the issues to be resolved at the Sandoval hearing render the defendant's presence superfluous, the hearing should not be conducted without the presence of the accused" (People v Dokes, 79 N.Y.2d 656, 662). On the present record, it cannot be said that defendant's presence would have been superfluous or "`useless, or the benefit but a shadow'" (People v Odiat, supra, at 183, quoting Snyder v Massachusetts, 291 U.S. 97, 106-107). Defendant's presence in the courtroom when the court announced its Sandoval ruling did not correct or overcome this fundamental error.
Concur — Sullivan, J.P., Carro, Milonas, Kupferman and Ross, JJ.