        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

891
KA 13-00172
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DONALD J. GARDNER, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Thomas E. Moran, J.), rendered October 1, 2012. The judgment
convicted defendant, upon a jury verdict, of criminal contempt in the
second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and the indictment is dismissed
without prejudice to the People to file any appropriate charge.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of criminal contempt in the second degree (Penal
Law § 215.50 [3]) as a lesser included offense of criminal contempt in
the first degree (§ 215.51 [b] [v]), which was charged in the second
count of the indictment. We agree with defendant that Supreme Court
erred in conducting the Sandoval hearing in his absence (see People v
Favor, 82 NY2d 254, 267, rearg denied 83 NY2d 801; People v Dokes, 79
NY2d 656, 660-662). The court’s Sandoval ruling in this case was not
wholly favorable to defendant, and thus “it cannot be said that
defendant’s presence at the hearing would have been superfluous”
(People v Morrison, 68 AD3d 1798, 1799). Contrary to the People’s
contention, although the court placed its Sandoval ruling on the
record in defendant’s presence the morning 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 NY2d 1029,
1031; see People v Potter, 114 AD3d 968, 968-969; Morrison, 68 AD3d at
1799). Inasmuch as defendant was acquitted of all counts charged in
the indictment and was convicted of the lesser included offense of
criminal contempt in the second degree, there is nothing remaining to
support further criminal prosecution under the accusatory instrument
(see People v Gonzalez, 61 NY2d 633, 635). Although defendant has
already served his sentence, under the circumstances here, we dismiss
                                 -2-                           891
                                                         KA 13-00172

the indictment without prejudice to the People to file any appropriate
charge (see generally People v Conceicao, 26 NY3d 375, 385 n; People v
Pallagi, 91 AD3d 1266, 1270).




Entered:   November 10, 2016                   Frances E. Cafarell
                                               Clerk of the Court
