People v. Mitchell

• Citation: 596 N.Y.S.2d 612,189 A.D.2d 337
• Parties: PEOPLE of the State of New York, Respondent, v. Raymond MITCHELL, Appellant.
• Decision Date: 14 April 1993
• Court: New York Supreme Court Appellate Division

Page 612

596 N.Y.S.2d 612

189 A.D.2d 337

PEOPLE of the State of New York, Respondent, v. Raymond MITCHELL, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

April 14, 1993.

William R. Lewis by Leonard Tilney, Lockport, for appellant.

Matthew J. Murphy, III by Thomas Brandt, Lockport, for respondent.

Before CALLAHAN, J.P., and PINE, LAWTON, BOOMER and DAVIS, JJ.

PER CURIAM.

We are called upon to determine the preferred procedure to be used when a Sandoval hearing was conducted off the record, and the record is silent concerning whether the defendant was present and what transpired at that hearing.

In People v. Dokes, 79 N.Y.2d 656, 584 N.Y.S.2d 761, 595 N.E.2d 836, the Court held that, except where a defendant's criminal history and the issues to be resolved render defendant's presence superfluous, it is a violation of defendant's right to be present at all material stages of trial for the court to conduct a Sandoval hearing in his absence. The Court additionally held that defendant's failure to object to that procedure is not fatal to his contention and that such contention may be raised for the first time on appeal (People v. Dokes, supra at 662, 584 N.Y.S.2d 761, 595 N.E.2d 836). In each of the eight cases before us, the defendant asserts that he was deprived of his right to be present at an unrecorded Sandoval conference. Generally, the records in these cases contain a reference to the fact that there had been a hearing and resolution of Sandoval issues, presumably in chambers. However, precisely what transpired during those conferences, including whether defendant was present, either is not revealed by the record or the record is ambiguous on that point. Thus, we are asked to decide the merits of defendants' Dokes contentions on records that do not provide an adequate basis for determining whether such contentions are meritorious.

The issue for immediate resolution is whether defendant has a remedy, either in anticipation of appeal (as in People v. Walker ) or during the pendency of appeal (as in the other seven cases before us), by which he may make a record of the Sandoval proceedings and thereby establish support for his Dokes contention. The People assert that defendant must bear the burden of an insufficient record by being foreclosed from pursuing a Dokes contention on direct appeal.

We conclude that the preferred procedure is to expand the record by conducting a hearing to reconstruct what transpired at the Sandoval conference, including whether defendant was present (see, People v. Odiat, 191 A.D.2d 183, 594 N.Y.S.2d 38; People v. Rose, 172 A.D.2d 230, 568 N.Y.S.2d 693, on appeal following remand, 175 A.D.2d 32, 572 N.Y.S.2d 300, aff'd, 80 N.Y.2d 802, 587 N.Y.S.2d 286, 599 N.E.2d 690; cf., People v. Armlin, 37 N.Y.2d 167, 173, 371 N.Y.S.2d 691, 332 N.E.2d 870 [reconstruction of defendant's mental competency]; People v. Bey, 144 A.D.2d 972, 973, 534 N.Y.S.2d 275, on appeal following remand, 167 A.D.2d 868, 562 N.Y.S.2d 896, lv. denied, 77 N.Y.2d 903, 569 N.Y.S.2d 935, 572 N.E.2d 618 [same]; People v. James, 132 A.D.2d 932, 933, 518 N.Y.S.2d 266 [reconstruction of voir dire in light of defendant's Batson contention].

There are several reasons for authorizing the remedy of reconstruction. First, timely challenges to the validity of a criminal conviction are best addressed on direct appeal. Second, the remedy of reconstruction accords with the spirit of Dokes and its progeny, all of which hold or imply that a Dokes contention is nonwaivable, need not be preserved, and may be raised for the first time on appeal (People v. Cruz, 81 N.Y.2d 738, 739, 593 N.Y.S.2d 767, 609 N.E.2d 120; People v. Gebrosky, 80 N.Y.2d 995, 996, 592 N.Y.S.2d 650, 607 N.E.2d 797; People v. Beasley, 80 N.Y.2d 981, 592 N.Y.S.2d 644, 607 N.E.2d 791; People v. Rose, 80 N.Y.2d 802, 803, 587 N.Y.S.2d 286, 599 N.E.2d 690; People v. Alexander, 80 N.Y.2d 801, 802, 587 N.Y.S.2d 286, 599 N.E.2d 690; People v. Dokes, supra ). A defendant's initial failure to request that a record be made of the Sandoval...