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

532
KA 12-01672
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

FREDERICK E. WALKER, DEFENDANT-APPELLANT.


JAMES S. HINMAN, P.C., ROCHESTER (JAMES S. HINMAN OF COUNSEL), FOR
DEFENDANT-APPELLANT.

FREDERICK E. WALKER, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN OF
COUNSEL), FOR RESPONDENT.


     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 his Sandoval hearing.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law, the judgment of conviction is vacated
and a new trial is granted.

     Memorandum: Following the reconstruction hearing ordered by the
Court of Appeals in People v Walker (18 NY3d 839, 840), Supreme Court
concluded that defendant “failed to satisfy his burden of coming
forward with substantial evidence establishing his absence” at the
Sandoval hearing. We agree with defendant that the court erred in
imposing the burden of proof on him at the reconstruction hearing.

     Inasmuch as “ ‘[a] presumption of regularity attaches to judicial
proceedings’ ” (People v Cruz, 14 NY3d 814, 816), a defendant
challenging the proceedings has the initial “burden of rebutting the
presumption of regularity by substantial evidence” (id.). In ordering
the reconstruction hearing, the Court of Appeals held that defendant
had rebutted the presumption of regularity and “satisfied his burden
of showing that a reconstruction hearing is necessary to determine
whether he was present during 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 facts by a preponderance of the evidence” (People v
Terry, 225 AD2d 1058, 1058, lv denied 88 NY2d 886; see People v
Pitsley, 300 AD2d 1010, 1011; People v Goodman, 284 AD2d 928, 928; see
also People v Durda, 265 AD2d 824, 824, lv denied 94 NY2d 862; People
                                 -2-                           532
                                                         KA 12-01672

v Nelson, 234 AD2d 977, 977, lv denied 89 NY2d 1039). We conclude
that the People failed to meet their burden. We therefore reverse the
order, vacate the judgment of conviction and grant a new trial.

     The transcript of the trial establishes that defendant was not in
the courtroom when the proceedings began. According to the
transcript, defense counsel informed the court that she “just went
back to see [defendant],” who was not dressed for court because the
jail had lost his trial clothes. After being informed that the jail
had also misplaced the trial clothes for the codefendant, the court
stated, “I didn’t come here today to spend my day waiting for clothes.
Trust me. Any Sandoval?” The Sandoval hearing for both defendant and
his codefendant was held, and the first indication in the record of
defendant’s presence is after the conclusion of that hearing. At the
reconstruction hearing, the only witnesses to testify were defendant
and his former attorney. 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 successfully located
his missing clothes. Defendant’s former attorney had no independent
recollection of the events surrounding the Sandoval hearing. We thus
conclude that the People failed to establish by a preponderance of the
evidence that defendant was present at the Sandoval hearing (see
People v Pitsley, 4 AD3d 841, 842, lv denied 2 NY3d 804).




Entered:   May 9, 2014                         Frances E. Cafarell
                                               Clerk of the Court
