Ordered that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact were raised or considered.
The defendant was convicted of murder in the second degree, after shooting a man who was arguing with a female acquaintance.
After remittitur of this case for a factual reconstruction hearing (Vaughn, J.), it was determined that the defendant was not present at the Sandoval hearing (see, People v. Odiat, 82 N.Y.2d 872). Because the Sandoval ruling was not "wholly favorable" to the defendant, his absence requires reversal of his conviction even though his claim was not preserved for appellate review (see, People v. Michalek, 82 N.Y.2d 906; People v. Favor, 82 N.Y.2d 254; People v. Dokes, 79 N.Y.2d 656). We note that the hearing court also determined that the defendant did not waive his right to be present. Mangano, P.J., Thompson, Sullivan and Ritter, JJ., concur.