People v. Koberstein

• Decision Date: 09 June 1995
• Citation: 629 N.Y.S.2d 363,216 A.D.2d 868
• Parties: The PEOPLE of the State of New York, Respondent, v. John KOBERSTEIN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 363

629 N.Y.S.2d 363

216 A.D.2d 868

The PEOPLE of the State of New York, Respondent, v. John KOBERSTEIN, Appellant.

Supreme Court, Appellate Division, Fourth Department.

June 9, 1995.

Howard Broder by Howard Broder, Rochester, for appellant.

Michael A. Arcuri by William Weber, Utica, for respondent.

Before PINE, J.P., and FALLON, WESLEY, BALIO and DAVIS, JJ.

MEMORANDUM:

This matter was remitted to Oneida County Court for a reconstruction hearing pursuant to People v. Mitchell, 189 A.D.2d 337, 596 N.Y.S.2d 612 to determine whether defendant was present at a Sandoval conference during his jury trial (People v. Koberstein, 206 A.D.2d 928, 616 N.Y.S.2d 297). The record reflects that defendant was not present when the court conducted a brief Sandoval conference in chambers wherein it informed counsel that it would apply an earlier Sandoval ruling that it had made in a prior trial of defendant on an unrelated charge. That earlier ruling had been made outside the presence of defendant and was the basis for reversal of defendant's conviction following that earlier trial (People v. Koberstein, 204 A.D.2d 1016, 614 N.Y.S.2d 956). The court's determination made outside the presence of defendant to use a prior Sandoval ruling cannot be cured by a subsequent recitation of that ruling in open court with defendant present (see, People v. Hall, 201 A.D.2d 891, 608 N.Y.S.2d 589, lv. denied 83 N.Y.2d 911, 614 N.Y.S.2d 393, 637 N.E.2d 284; see also, People v. Eady, 185 A.D.2d 678, 587 N.Y.S.2d 881, lv. denied 80 N.Y.2d 929, 589 N.Y.S.2d 856, 603 N.E.2d 961).

Moreover, at the reconstruction hearing, the Trial Judge acknowledged that his statements in open court during the trial, which allegedly reflected the content of the Sandoval conference, were inaccurate. The Trial Judge testified at the reconstruction hearing that it was his usual practice to summarize the possible arguments available to the prosecution and to the defense on Sandoval issues even if such arguments had not been made.

We, therefore, reverse defendant's conviction of two counts of murder in the second degree and grant a new trial before a different Judge. We note that defendant raised additional arguments in his original brief concerning other rulings of the court at trial. We have considered those arguments and conclude that they are without merit.

Judgment unanimously reversed on the law and new trial granted.