| People v Walker |
| 2014 NY Slip Op 03411 [117 AD3d 1578] |
| May 9, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vFrederick E. Walker, Appellant. |
James S. Hinman, P.C., Rochester (James S. Hinman of counsel), fordefendant-appellant.
Frederick E. Walker, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from an order of the Supreme Court, Monroe County (Francis A. Affronti,J.), dated July 10, 2012. The order determined that defendant had been present for hisSandoval hearing.
It is hereby ordered that the order so appealed from is unanimously reversed on thelaw, the judgment of conviction is vacated and a new trial is granted.
Memorandum: Following the reconstruction hearing ordered by the Court of Appealsin People v Walker (18NY3d 839, 840 [2011]), Supreme Court concluded that defendant "failed to satisfyhis burden of coming forward with substantial evidence establishing his absence" at theSandoval hearing. We agree with defendant that the court erred in imposing theburden of proof on him at the reconstruction hearing.
Inasmuch as " '[a] presumption of regularity attaches to judicialproceedings' " (People vCruz, 14 NY3d 814, 816 [2010]), a defendant challenging the proceedings hasthe initial "burden of rebutting the presumption of regularity by substantial evidence"(id.). In ordering the reconstruction hearing, the Court of Appeals held thatdefendant had rebutted the presumption of regularity and "satisfied his burden ofshowing that a reconstruction hearing is necessary to determine whether he was presentduring the Sandoval hearing" (Walker, 18 NY3d at 840; see Cruz,14 NY3d at 816).
At the reconstruction hearing, "the People ha[d] the burden of establishing the factsby a preponderance of the evidence" (People v Terry, 225 AD2d 1058, 1058[1996], lv denied 88 NY2d 886 [1996]; see People v Pitsley, 300 AD2d1010, 1011 [2002]; People v Goodman, 284 AD2d 928, 928 [2001]; see alsoPeople v Durda, 265 AD2d 824, 824 [1999], lv denied 94 NY2d 862 [1999];People v Nelson, 234 AD2d 977, 977 [1996], lv denied 89 NY2d 1039[1997]). We conclude that the People failed to meet their burden. We therefore reversethe order, vacate the judgment of conviction and grant a new trial.
The transcript of the trial establishes that defendant was not in the courtroom whenthe [*2]proceedings began. According to the transcript,defense counsel informed the court that she "just went back to see [defendant]," who wasnot dressed for court because the jail had lost his trial clothes. After being informed thatthe jail had also misplaced the trial clothes for the codefendant, the court stated, "I didn'tcome here today to spend my day waiting for clothes. Trust me. Any Sandoval?" TheSandoval hearing for both defendant and his codefendant was held, and the firstindication in the record of defendant's presence is after the conclusion of that hearing. Atthe reconstruction hearing, the only witnesses to testify were defendant and his formerattorney. Defendant denied that he was present during any discussion of his prior crimes,stating that it was during that time that he was returned to the jail, where he successfullylocated his missing clothes. Defendant's former attorney had no independent recollectionof the events surrounding the Sandoval hearing. We thus conclude that thePeople failed to establish by a preponderance of the evidence that defendant was presentat the Sandoval hearing (see People v Pitsley, 4 AD3d 841, 842 [2004], lvdenied 2 NY3d 804 [2004]). Present—Scudder, P.J., Fahey, Lindley,Valentino and Whalen, JJ.