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The PEOPLE of the State of New York, Respondent, v. Gregg W. MORRISON, Defendant-Appellant.

Decided: December 30, 2009

PRESENT: SCUDDER, P.J., HURLBUTT, SMITH, AND CENTRA, JJ. Donald M. Thompson, Rochester, for Defendant-Appellant. David W. Foley, District Attorney, Mayville (Tracey A. Brunecz Of Counsel), for Respondent.

Defendant appeals from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05[4] ) and upon his plea of guilty of reckless endangerment in the second degree (§ 120.20). The conviction arises out of an incident in which defendant, while a passenger in the front seat of a vehicle, interfered with the driver's operation of the vehicle and caused it to collide with the victim's vehicle. The contention of defendant that County Court erred in conducting the Sandoval hearing in his absence is raised for the first time in defendant's reply brief and thus is not properly before us (see People v. Sponburgh, 61 A.D.3d 1415, 877 N.Y.S.2d 585, lv denied 12 N.Y.3d 929, 884 N.Y.S.2d 711, 912 N.E.2d 1092; People v. Donahue, 21 A.D.3d 1359, 801 N.Y.S.2d 218, lv denied 6 N.Y.3d 775, 811 N.Y.S.2d 342, 844 N.E.2d 797; People v. McQueen, 11 A.D.3d 1005, 1006, 782 N.Y.S.2d 336, lv denied 4 N.Y.3d 765, 792 N.Y.S.2d 9, 825 N.E.2d 141). Nevertheless, we exercise our power to review it as a matter of discretion in the interest of justice, and we agree with defendant that his presence at the Sandoval hearing was required (see People v. Favor, 82 N.Y.2d 254, 258, 604 N.Y.S.2d 494, 624 N.E.2d 631; see generally People v. Dokes, 79 N.Y.2d 656, 660-662, 584 N.Y.S.2d 761, 595 N.E.2d 836). The court's Sandoval ruling was not wholly favorable to defendant, and thus it cannot be said that defendant's presence at the hearing would have been superfluous (see People v. Michalek, 82 N.Y.2d 906, 907, 609 N.Y.S.2d 172, 631 N.E.2d 114; People v. Odiat, 82 N.Y.2d 872, 874, 609 N.Y.S.2d 166, 631 N.E.2d 108; see generally Favor, 82 N.Y.2d at 268, 604 N.Y.S.2d 494, 624 N.E.2d 631). Although the court placed its Sandoval ruling on the record in defendant's presence the day 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, 643 N.Y.S.2d 470, 666 N.E.2d 175). We therefore reverse that part of the judgment convicting defendant of assault in the second degree and grant a new trial on that count of the indictment. Because we are unable to determine whether defendant's guilty plea to reckless endangerment in the second degree was induced by the jury's verdict finding defendant guilty of assault (see People v. Ramos, 40 N.Y.2d 610, 619, 389 N.Y.S.2d 299, 357 N.E.2d 955; People v. Burley, 60 A.D.2d 973, 401 N.Y.S.2d 631), we also reverse that part of the judgment convicting defendant of reckless endangerment in the second degree and grant a new trial on the second count of the indictment, charging defendant with reckless endangerment in the first degree (§ 120.25).

Viewing the evidence in light of the elements of the crime of assault in the second degree as charged to the jury (see People v. Danielson, 9 N.Y.2d 342, 349, 214 N.Y.S.2d 363, 174 N.E.2d 470), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). “Giving ‘appropriate deference to the jury's superior opportunity to assess the witnesses' credibility’ “ (People v. Marshall, 65 A.D.3d 710, 712, 884 N.Y.S.2d 494), we conclude that, although a different result would not have been unreasonable, the jury was entitled to credit the victim's version of how the accident occurred over defendant's version (see People v. Wedlington, --- AD3d ---- [Nov. 20, 2009] ).

In view of our determination that reversal of the judgment is required, we need not review defendant's remaining contentions. Nevertheless, because we are granting a new trial, we note in the interest of judicial economy that the testimony of the witnesses at trial concerning the statements of the driver of the vehicle in which defendant was a passenger with respect to the cause of the accident constituted inadmissible hearsay (see generally People v. Huertas, 75 N.Y.2d 487, 491-492, 554 N.Y.S.2d 444, 553 N.E.2d 992). That testimony also impermissibly bolstered the credibility of the driver at trial, particularly with respect to her testimony concerning the cause of the accident (see generally People v. Davis, --- AD3d ---- [Nov. 13, 2009]; People v. Osborne, 63 A.D.3d 1707, 880 N.Y.S.2d 835, lv denied 13 N.Y.3d 748, 886 N.Y.S.2d 102, 914 N.E.2d 1020).

It is hereby ORDERED that the judgment so appealed from is unanimously reversed as a matter of discretion in the interest of justice and on the law, the plea is vacated, and a new trial is granted.