People v. Parchment
| Decision Date | 21 August 1995 |
| Citation | 218 A.D.2d 752,630 N.Y.S.2d 778 |
| Parties | The PEOPLE, etc., Respondent, v. Derrick PARCHMENT, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Daniel L. Greenberg, New York City (Frances A. Gallagher, of counsel), for appellant.
Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie, Victor Barall, Ann Bordley, David O. Leiwant and Joseph Tucker, of counsel), for respondent.
Before SULLIVAN, J.P., and O'BRIEN, GOLDSTEIN and FLORIO, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from (1) a judgment of the Supreme Court, Kings County (Fertig, J.), rendered June 13, 1989, convicting him of attempted murder in the second degree, attempted robbery in the first degree, assault in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree under Indictment No. 9580/87, upon a jury verdict, and imposing sentence, and (2) an amended judgment of the same court, also rendered June 13, 1989, revoking a sentence of probation previously imposed upon a finding that he had violated a condition thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of attempted robbery in the second degree under Indictment No. 723/87. By decision and order of this court dated April 25, 1994, the appeals were held in abeyance, and the matter was remitted to the Supreme Court, Kings County, for a reconstruction hearing to determine whether the defendant was present at the Sandoval hearing conducted on January 4, 1989, under Indictment No. 9580/87 (see, People v. Parchment, 203 A.D.2d 595, 612 N.Y.S.2d 939). The Supreme Court, Kings County (Rivera, J.), has now complied.
ORDERED that the judgment is modified, on the law, by vacating the sentence imposed upon the defendant's conviction for attempted murder in the second degree under Indictment No. 9580/87; as so modified, the judgment is affirmed and the matter is remitted to the Supreme Court, Kings County, for resentencing on that count; and it is further,
ORDERED that the amended judgment under Indictment No. 723/87 is affirmed.
The matter was remitted for a reconstruction hearing to determine if the defendant was present during the Sandoval hearing held under Indictment No. 9580/87. Although there was no dispute that the defendant was initially present in the courtroom, the record was unclear as to whether he was removed before the Sandoval hearing was completed. The reconstruction hearing encompassed testimony of the prosecutor and the defense counsel involved in the trial as well as the defendant.
The determination of a hearing court, which has the advantage of hearing and seeing the witnesses, should be upheld unless it is clearly unsupported by the evidence in the record (see, e.g., People v. Prochilo, 41 N.Y.2d 759, 395 N.Y.S.2d 635, 363 N.E.2d 1380; People v. Black, 214 A.D.2d 619, 624 N.Y.S.2d 966; People v. Catala, 198 A.D.2d 293, 603 N.Y.S.2d 562). The record of the reconstruction hearing supports the court's determination that the defendant was present during the Sandoval hearing, which was held in open court, and that the defendant was not removed from the courtroom until after the trial court made its ruling on the Sandoval application. Consequently, the defendant's contention that he is entitled to a new trial on this ground is without merit.
The other issues raised by the defendant with respect to his conviction under Indictment No. 9580/87 do not require reversal. The defendant contends that he was deprived of his right to be present during a material stage of the trial because a prospective juror was dismissed for cause after a sidebar conference in violation of the rule in People v. Sloan, 79 N.Y.2d 386, 583 N.Y.S.2d 176, 592 N.E.2d 784. However, as the trial was held prior to the date that People v. Sloan (supra ) was decided, and the rule is not retroactively applied (see, People v. Sprowal, 84 N.Y.2d 113, 615 N.Y.S.2d 328, 638 N.E.2d...
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