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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Ruben DeJESUS, Defendant-Appellant.

Decided: July 15, 1999

MAZZARELLI, J.P., WALLACH, RUBIN, ANDRIAS and SAXE, JJ. Rona Feinberg, for Respondent. Alicia L. Young, for Defendant-Appellant.

Appeal from judgment, Supreme Court, New York County (Laura Drager, J., at speedy trial motion and suppression hearing;  Micki Scherer, J., at jury trial and sentence), rendered September 10, 1996, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 6 to 12 years imprisonment, held in abeyance, and the matter is remanded for reconstruction of the Sandoval hearing and for a hearing as to whether defendant was present at the sidebar conferences at issue and, if not, whether there was a waiver of his right to be present.

 The People concede that this matter should be remanded to the Supreme Court in order to reconstruct the Sandoval hearing, the minutes of which have been lost.   We reject defendant's contention that the Hinton hearing should also be reconstructed.   Although the minutes of that hearing have also been lost, the particulars of the hearing testimony are set forth in great detail in the court's lengthy decision.

 However, contrary to the People's position, a hearing as to whether defendant was present at the challenged sidebars, or waived such presence, is required.   Some of the transcripts of the voir dire are missing and, although the clerk's worksheet indicates a waiver by defendant, we do not find this sufficient to determine whether there was an effective waiver.   Thus, a hearing on that issue is also required.


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