People v. Bazil , 622 N.Y.S.2d 537 ( 1995 )

—Appeal by the defendant (1) from a judgment of the Supreme Court, Queens County (O’Brien, J.), rendered April 30, 1990, convicting him of murder in the second degree, manslaughter in the first degree, robbery in the first degree (two counts), and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence and (2), by permission, from an order of the same court (Flaherty, J.), dated March 5, 1992, which, without a hearing, denied his motion pursuant to CPL 440.10 to vacate the judgment of conviction.

Ordered that the matter is remitted to the Supreme Court, Queens County, to hear and report on the question of whether the defendant was present at the Sandoval hearing, and the appeal is held in abeyance in the interim.

The defendant contends that he was not present during the Sandoval hearing and that, therefore, his conviction must be reversed (see, People v Favor, 82 NY2d 254). The record is silent as to whether the defendant was present. Since the defendant’s presence at the Sandoval hearing would not have been merely "superfluous” because the Sandoval ruling was not "wholly favorable” to him (see, People v Favor, supra), the threshold factual issue as to the defendant’s presence or absence at the Sandoval hearing must be resolved before this appeal is decided. Thus, the appeal is held in abeyance and the case is remitted to the trial court for a hearing on this matter (see, People v Law, 199 AD2d 282). Mangano, P. J., Bracken, Altman and Goldstein, JJ., concur.