PEOPLE v. EVANS

Ordered that the judgments are reversed, on the law, and a new trial is ordered.

After remittitur of this case for a factual reconstruction hearing, the Supreme Court determined that the defendant was not present at the Sandoval hearing.

It is well settled that, "[t]he 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" ( People v Parchment, 218 AD2d 752, 753; see also, People v Prochilo, 41 NY2d 759). Contrary to the People's contentions, the record of the reconstruction hearing supports the court's findings ( see, People v Law, 202 AD2d 691). Since a Sandoval hearing is a material stage of the trial at which a defendant's presence is required, the judgment must be reversed and a new trial ordered ( see, People v Favor, 82 NY2d 254; People v Dokes, 79 NY2d 656).

The defendant's remaining contentions are either unpreserved for appellate review or lack merit.