PEOPLE v. FARAONE (2018)

ORDERED that the judgment of conviction is reversed, on the law, and the matter is remitted to the District Court for a new trial.

Insofar as is relevant to this appeal, following a jury trial, defendant was convicted of driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs (Vehicle and Traffic Law § 1192 [4–a] ). On appeal, defendant contends, among other things, that he was convicted of violating Vehicle and Traffic Law § 1192 (4–a) but had not been charged with that offense; that the evidence was legally insufficient; that the verdict was against the weight of the evidence; that improper testimony by the People's expert witness deprived defendant of a fair trial; and that he was deprived of his right to be present at a Sandoval hearing (People v. Sandoval, 34 NY2d 371 [1974] ).

The record shows that defendant was arraigned on an accusatory instrument charging him with driving while ability impaired by drugs (Vehicle and Traffic Law § 1192 [4] ) on January 2, 2013, and was arraigned on an accusatory instrument charging him with driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs (Vehicle and Traffic Law § 1192 [4–a] ) on June 20, 2013. Thereafter, on October 6, 2014, prior to trial, the accusatory instrument charging defendant with violating Vehicle and Traffic Law § 1192 (4) was dismissed. Consequently, contrary to defendant's contention, he was convicted of a charged offense.

Defendant's contention that the People's expert witness, a forensic toxicologist, should not have been permitted to testify regarding drug interactions lacks merit. A forensic toxicologist can give opinion testimony as to the impairing effect of drugs (see People v. Jakobson, 119 AD3d 815, 817 [2014]; People v. Rossi, 163 AD2d 660, 662 [1990] ).

Defendant's contention regarding the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05 [2]; People v. Hawkins, 11 NY3d 484, 491–492 [2008]; People v. Hines, 97 NY2d 56, 61 [2001]; People v. Gray, 86 NY2d 10 [1995] ). In any event, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 NY2d 620, 621 [1983] ), and indulging in all reasonable inferences in the People's favor (see People v. Ford, 66 NY2d 428, 437 [1985] ), we find that the evidence was legally sufficient to establish defendant's guilt of driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs, beyond a reasonable doubt (Vehicle and Traffic Law § 1192 [4–a] ). Moreover, upon the exercise of our factual review power (see CPL 470.15 [5]; People v. Danielson, 9 NY3d 342, 348–349 [2007] ), while according great deference to the jury's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v. Mateo, 2 NY3d 383, 410 [2004]; People v. Bleakley, 69 NY2d 490, 495 1987] ), we are satisfied that the verdict convicting defendant of driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs (Vehicle and Traffic Law § 1192 [4–a] ) was not against the weight of the evidence (see People v. Romero, 7 NY3d 633, 643–646 [2006] ).

It is well settled that a Sandoval hearing is a material stage of a trial at which a defendant has a right to be present (see CPL 340.50 [1]; People v. Dokes, 79 NY2d 656, 662 [1992] ). In the case at bar, while defendant was not present in court, the District Court repeatedly mentioned defendant's right to be present at a Sandoval hearing and stated that it wanted to hear the People's Sandoval “application now and will place it on the record later when we see Mr. Faraone.” The prosecutor and defense counsel then presented their Sandoval arguments. After defendant was produced in court, the District Court merely informed defendant of what had transpired during his absence, and rendered its Sandoval ruling without allowing defendant to address the merits of the People's application.

While the fact that a Sandoval hearing was held outside of a defendant's presence does not require reversal if the defendant was given an opportunity for meaningful participation in the process (see People v. Favor, 82 NY2d 254, 267 [1993]; People v. Hayes, 221 AD2d 468, 469 [1995]; People v. Hailey, 221 AD2d 466, 467 [1995] ), the “fact that the trial court recited the gist of its Sandoval decision in defendant's presence does not ameliorate the error, since th[e] recitation d[oes] not furnish defendant with the opportunity for meaningful participation to which he was entitled” (People v. Favor, 82 NY2d at 267). As the District Court's Sandoval ruling was “not wholly favorable” to defendant (People v. Michalek, 82 NY2d 906, 907 [1994]; see also People v. Favor, 82 NY2d at 267) and it cannot be said that defendant's presence at the hearing would have been superfluous (see also People v. Dokes, 79 NY2d at 662), defendant's absence requires reversal of his conviction even though his claim was not preserved for appellate review (see People v. Robles, 86 NY2d 763, 765 [1995]; People v. Dokes, 79 NY2d at 662; People v. Potter, 114 AD3d 968, 969 [2014] ).

Because a new trial is required, we pass on no other issue.

Accordingly, the judgment of conviction is reversed and the matter is remitted for a new trial.

MARANO, P.J., BRANDS and RUDERMAN, JJ., concur.