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

336
KA 09-02212
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DANHAILE R. REID, JR., DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NICOLE FANTIGROSSI OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Daniel J. Doyle, J.), rendered August 17, 2009. The judgment
convicted defendant, upon a jury verdict, of criminal possession of a
weapon in the second degree, criminal possession of a weapon in the
third degree and assault in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of, inter alia, assault in the second degree (Penal Law §
120.05 [3]), defendant contends that he was denied his right to be
present at all material stages of his trial when a Sandoval hearing
was conducted in his absence. We reject that contention. Although it
is undisputed that defendant was not present at a pretrial conference
at which Sandoval issues were discussed, the record establishes that
Supreme Court declined to make a Sandoval ruling at that time because
it did not know whether defendant would admit to the allegations of a
special information concerning a robbery conviction in 1993. Even
assuming, arguendo, that discussions at the pretrial conference with
respect to Sandoval issues constituted a Sandoval hearing, we note
that the record further establishes that, immediately prior to trial,
the court conducted a de novo Sandoval hearing at which defendant was
present, and defendant stated at that time that he would admit to the
aforementioned allegations of the special information. The court then
provided defendant a meaningful opportunity to argue his position with
respect to the Sandoval issues before the court, including those
raised by defendant in a submission to the court after the pretrial
conference (see generally People v Matthews, 68 NY2d 118, 123). We
conclude that, because the court did not issue a Sandoval ruling at
the pretrial conference, and “[b]ecause defendant was afforded an
opportunity to participate at [a] de novo Sandoval hearing, reversal
                                 -2-                           336
                                                         KA 09-02212

is not required” (People v Bartell, 234 AD2d 956, 956, lv denied 89
NY2d 983; see People v Lynch, 216 AD2d 929, 929, lv denied 87 NY2d
904; cf. People v Monclavo, 87 NY2d 1029, 1030-1031).

     Defendant further contends that he was convicted of an unindicted
crime because the trial testimony revealed a second “physical injury
causing act” that had not been presented to the grand jury. “Because
defendant’s right to be tried and convicted of only those crimes
charged in the indictment is fundamental and nonwaivable, we reach
th[at] issue despite the fact that it is unpreserved” (People v McNab,
167 AD2d 858, 858). We nevertheless reject defendant’s contention
inasmuch as we conclude that defendant’s actions constituted “a
single, uninterrupted assault rather than a series of distinct
criminal acts” (People v Snyder, 100 AD3d 1367, 1367, lv denied 21
NY3d 1010; see People v James, 114 AD3d 1202, 1205; see also People v
Alonzo, 16 NY3d 267, 270).




Entered:   May 2, 2014                         Frances E. Cafarell
                                               Clerk of the Court
