PEOPLE v. SMITH

Review of the transcript leads us to conclude that the defendant had been present during the Sandoval hearing. To whatever extent an ambiguity exists in the minutes, it was defendant's burden to demonstrate record evidence of his absence (People v. Robinson, 191 A.D.2d 523, lv denied 81 N.Y.2d 1018; see also, People v. Walker, 202 A.D.2d 312, lv denied 83 N.Y.2d 972; People v. Brown, 186 A.D.2d 356). Since we conclude that the record indicates that the defendant was present in the courtroom, at a time that the jury was not, his right to have had an opportunity to participate in the Sandoval hearing was protected (see, People v. Walker, supra; People v. Gonzalez, 203 A.D.2d 192), regardless of his actual presence at the sidebar.

Concur — Wallach, J.P., Asch, Rubin and Williams, JJ.