THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DONALD GARDNER DEFENDANT APPELLANT (2016)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and the indictment is dismissed without prejudice to the People to file any appropriate charge.

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of criminal contempt in the second degree (Penal Law § 215.50[3] ) as a lesser included offense of criminal contempt in the first degree (§ 215.51 [b][v] ), which was charged in the second count of the indictment.  We agree with defendant that Supreme Court erred in conducting the Sandoval hearing in his absence (see People v. Favor, 82 N.Y.2d 254, 267, rearg. denied 83 N.Y.2d 801;  People v. Dokes, 79 N.Y.2d 656, 660–662).  The court's Sandoval ruling in this case was not wholly favorable to defendant, and thus “it cannot be said that defendant's presence at the hearing would have been superfluous” (People v. Morrison, 68 AD3d 1798, 1799).  Contrary to the People's contention, although the court placed its Sandoval ruling on the record in defendant's presence the morning after the hearing, “[a] mere repetition or recitation in the defendant's presence of what has already been determined in [the defendant's] absence is insufficient compliance with the Sandoval rule” (People v. Monclavo, 87 N.Y.2d 1029, 1031;  see People v. Potter, 114 AD3d 968, 968–969;  Morrison, 68 AD3d at 1799).  Inasmuch as defendant was acquitted of all counts charged in the indictment and was convicted of the lesser included offense of criminal contempt in the second degree, there is nothing remaining to support further criminal prosecution under the accusatory instrument (see People v. Gonzalez, 61 N.Y.2d 633, 635).  Although defendant has already served his sentence, under the circumstances here, we dismiss the indictment without prejudice to the People to file any appropriate charge (see generally People v. Conceicao, 26 NY3d 375, 385 n;  People v. Pallagi, 91 AD3d 1266, 1270).

Frances E. Cafarell

Clerk of the Court