PEOPLE v. DURDA (1999)

Upon remittitur to Supreme Court for a reconstruction hearing (People v. Durda, 259 A.D.2d 996, 703 N.Y.S.2d 926), the court properly determined, based upon the testimony adduced at the hearing (see, People v. Alomar, 93 N.Y.2d 239, 689 N.Y.S.2d 680, 711 N.E.2d 958), that the People's Ventimiglia application was decided on papers alone and that no off-the-record proceeding occurred.   We conclude, therefore, that the People met their burden at the reconstruction hearing of establishing by a preponderance of the evidence that defendant was not denied the right to be present at a Ventimiglia proceeding (see, People v. Terry, 225 A.D.2d 1058, 639 N.Y.S.2d 215, lv. denied 88 N.Y.2d 886, 645 N.Y.S.2d 461, 668 N.E.2d 432).   We further conclude that the verdict is based upon sufficient evidence and is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Judgment unanimously affirmed.

MEMORANDUM: