
    The People of the State of New York, Respondent, v John Koberstein, Appellant.
    [629 NYS2d 363]
   Judgment unanimously reversed on the law and new trial granted in accordance with the following Memorandum: This matter was remitted to Oneida County Court for a reconstruction hearing pursuant to People v Mitchell (189 AD2d 337) to determine whether defendant was present at a Sandoval conference during his jury trial (People v Koberstein, 206 AD2d 928). The record reflects that defendant was not present when the court conducted a brief Sandoval conference in chambers wherein it informed counsel that it would apply an earlier Sandoval ruling that it had made in a prior trial of defendant on an unrelated charge. That earlier ruling had been made outside the presence of defendant and was the basis for reversal of defendant’s conviction following that earlier trial (People v Koberstein, 204 AD2d 1016). The court’s determination made outside the presence of defendant to use a prior Sandoval ruling cannot be cured by a subsequent recitation of that ruling in open court with defendant present (see, People v Hall, 201 AD2d 891, Iv denied 83 NY2d 911; see also, People v Eady, 185 AD2d 678, Iv denied 80 NY2d 929).

Moreover, at the reconstruction hearing, the Trial Judge acknowledged that his statements in open court during the trial, which allegedly reflected the content of the Sandoval conference, were inaccurate. The Trial Judge testified at the reconstruction hearing that it was his usual practice to summarize the possible arguments available to the prosecution and to the defense on Sandoval issues even if such arguments had not been made.

We, therefore, reverse defendant’s conviction of two counts of murder in the second degree and grant a new trial before a different Judge. We note that defendant raised additional arguments in his original brief concerning other rulings of the court at trial. We have considered those arguments and conclude that they are without merit. (Resubmission of Appeal from Judgment of Oneida County Court, Buckley, J.—Murder, 2nd Degree.) Present—Pine, J. P., Fallon, Wesley, Balio and Davis, JJ.  