matter for a reconstruction hearing in New York

2026"In view of the passage of time and the lack of contemporaneous psychiatric reports of the defendant's mental condition at the time of trial, it would be futile to remit the matter for a reconstruction hearing to attempt to determine the defendant's fitness to proceed at that time" (<i>People v Bellucci</i>, 189 AD3d 869, 871 ; <i>see People v Peterson</i>, 40 NY2d 1014 ).

2020In view of the passage of time and the lack of contemporaneous psychiatric reports of the defendant's mental condition at the time of trial, it would be futile to remit the matter for a reconstruction hearing to attempt to determine the defendant's fitness to proceed at that time ( see People v Peterson , 40 NY2d at 1015 ; People v Heston , 72 AD3d at 702 ; People v Hussari , 17 AD3d 483, 483-484 ).

1987This error did not necessarily require a reversal and a new trial; we had the authority to remit the matter for a reconstruction hearing to determine defendant’s competency at the time of trial (see, People v Hudson, 19 NY2d 137 , cert denied 398 US 944 ; People v Weech, 98 AD2d 952 ).

1985On the authority of People v Hudson ( 19 NY2d 137,140 , cert denied 398 US 944 ) and our precedents in People v Wright ( 105 AD2d 1088 ) and People v Weech ( 105 AD2d 1085 ), I would reserve decision and remit the matter for a reconstruction hearing pertaining to defendant’s competency to stand trial.

1987This error did not necessarily require a reversal and a new trial; we had the authority to remit the matter for a reconstruction hearing to determine defendant’s competency at the time of trial (see, People v Hudson, 19 NY2d 137 , cert denied 398 US 944 ; People v Weech, 98 AD2d 952 ).

1985On the authority of People v Hudson ( 19 NY2d 137,140 , cert denied 398 US 944 ) and our precedents in People v Wright ( 105 AD2d 1088 ) and People v Weech ( 105 AD2d 1085 ), I would reserve decision and remit the matter for a reconstruction hearing pertaining to defendant’s competency to stand trial.

2026"In view of the passage of time and the lack of contemporaneous psychiatric reports of the defendant's mental condition at the time of trial, it would be futile to remit the matter for a reconstruction hearing to attempt to determine the defendant's fitness to proceed at that time" (<i>People v Bellucci</i>, 189 AD3d 869, 871 ; <i>see People v Peterson</i>, 40 NY2d 1014 ).

2020In view of the passage of time and the lack of contemporaneous psychiatric reports of the defendant's mental condition at the time of trial, it would be futile to remit the matter for a reconstruction hearing to attempt to determine the defendant's fitness to proceed at that time ( see People v Peterson , 40 NY2d at 1015 ; People v Heston , 72 AD3d at 702 ; People v Hussari , 17 AD3d 483, 483-484 ).

2020Accordingly, we reverse the judgment and remit the matter to the Supreme Court, Richmond County, for further proceedings on the indictment, subject to the Supreme Court's discretion or the motion of either party raising the issue of the defendant's capacity to proceed with the criminal proceedings ( see CPL art 730; People v Heston , 72 AD3d at 702 ; People v Hasenflue , 48 AD3d 888, 891 ).

2010Although noting that "it appears on the record before us that there was a jury note" and that "the record is silent with respect to the court's response to the note," the Appellate Division did not conclude that there had been a mode of proceedings error, as defendant urged; it instead held the appeal in abeyance and remitted the matter for a reconstruction hearing to determine if there was a jury note and what, if anything, was done in response to any such note ( 42 AD3d 901 [4th Dept 2007]).

2010Although noting that “it appears on the record before us that there was a jury note” and that “the record is silent with respect to the court’s response to the note,” the Appellate Division did not conclude that there had been a mode of proceedings error, as defendant urged; it instead held the appeal in abeyance and remitted the matter for a reconstruction hearing to determine if there was a jury note and what, if anything, was done in response to any such note ( 42 AD3d 901 [4th Dept 2007]).

2002Here, unlike our previous decisions, neither the court nor the defense counsel articulated in the defendant’s presence “the substance of the Antommarchi right” (People v Keen, supra at 538-539 ), and the record does not indicate that there was any discussion between the defense counsel and the defendant from which it can be inferred that the defendant understood the trial judge’s statement, “Antommarchi waived.” Accordingly, I would remit the matter for a reconstruction hearing to determine whether the court or the defense counsel informed the defendant, prior to the waiver, that he had the ri

2002I do not agree with my colleagues that the record is adequate to determine that the defendant made a knowing, voluntary, and intelligent waiver of his Antommarchi rights (see People v Antommarchi, 80 NY2d 247 ).

2001Indeed, the trial court’s ability to observe demeanor is entitled to deference (People v Rodriguez, 276 AD2d 275 , lv denied 96 NY2d 738 ; People v Middleton, 220 AD2d 202 , lv denied 87 NY2d 848 ), and after a review of the record, we discern no need to remand this matter for a reconstruction hearing.

2001Indeed, the trial court’s ability to observe demeanor is entitled to deference (People v Rodriguez, 276 AD2d 275 , lv denied 96 NY2d 738 ; People v Middleton, 220 AD2d 202 , lv denied 87 NY2d 848 ), and after a review of the record, we discern no need to remand this matter for a reconstruction hearing.

1998In our prior order, entered October 29, 1996 (see, People v Childs, 232 AD2d 308 ), we held the appeal in abeyance and remanded the matter for a reconstruction hearing.

1997The hearing was necessary under the circumstances of this case (see, e.g., People v Odiat, 82 NY2d 872 ), and contrary to the defendant’s contentions, nothing in the decisions of the Court of Appeals in People v Maher ( 89 NY2d 318 ) or People v Damiano ( 87 NY2d 477 ) indicates that such a hearing was improper.

1997The hearing was necessary under the circumstances of this case (see, e.g., People v Odiat, 82 NY2d 872 ), and contrary to the defendant’s contentions, nothing in the decisions of the Court of Appeals in People v Maher ( 89 NY2d 318 ) or People v Damiano ( 87 NY2d 477 ) indicates that such a hearing was improper.

1997We therefore remit this matter for a reconstruction hearing (see, e.g., People v Johnson, 206 AD2d 874, 875 ).

1997The hearing was necessary under the circumstances of this case (see, e.g., People v Odiat, 82 NY2d 872 ), and contrary to the defendant’s contentions, nothing in the decisions of the Court of Appeals in People v Maher ( 89 NY2d 318 ) or People v Damiano ( 87 NY2d 477 ) indicates that such a hearing was improper.

1996Memorandum: By order dated March 17, 1995, this Court held defendant’s appeal, reserved decision and remitted the matter for a reconstruction hearing to determine whether defendant was present at an in-chambers Sandoval hearing (People v Sharpe, 213 AD2d 1008 ).

1996Case held, decision reserved and matter remitted to Onondaga County Court for further proceedings in accordance with the following Memorandum: When this appeal was previously before us, we held the case, reserved decision and remitted the matter for a reconstruction hearing to determine whether defendant was present at an in-chambers Sandoval hearing (People v Baxter, 216 AD2d 931 ).

1995However, inasmuch as the record is unclear with respect to this issue, and because the decision rendered was not wholly favorable to the defendant, we remit the matter for a reconstruction hearing to determine whether the defendant was in fact present and, if not, whether he was informed of the contents of that discussion (see, People v Michalek, 82 NY2d 906 ; People v Favor, 82 NY2d 254 ; People v Parchment, 203 AD2d 595 ).

1995However, inasmuch as the record is unclear with respect to this issue, and because the decision rendered was not wholly favorable to the defendant, we remit the matter for a reconstruction hearing to determine whether the defendant was in fact present and, if not, whether he was informed of the contents of that discussion (see, People v Michalek, 82 NY2d 906 ; People v Favor, 82 NY2d 254 ; People v Parchment, 203 AD2d 595 ).

1995We remitted the matter for a reconstruction hearing (see, People v Dulac, 209 AD2d 1045 ).

1995By order of this Court entered January 24, 1995, we held the appeal in abeyance and remitted the matter for a reconstruction hearing to determine whether defendant was present at the Sandoval hearing. ( 211 AD2d 551 .) The reconstruction hearing was held on April 13, 1995, the court (Frederic S. Berman, J.) finding that defendant was present at the Sandoval hearing.

1995However, inasmuch as the record is unclear with respect to this issue, and because the decision rendered was not wholly favorable to the defendant, we remit the matter for a reconstruction hearing to determine whether the defendant was in fact present and, if not, whether he was informed of the contents of that discussion (see, People v Michalek, 82 NY2d 906 ; People v Favor, 82 NY2d 254 ; People v Parchment, 203 AD2d 595 ).

1994Defendant likewise has the right to be present at a Sandoval hearing (see, People v Dokes, 79 NY2d 656 ).