
    The People of the State of New York, Respondent, v Melvin Johnson, Appellant.
    [623 NYS2d 433]
   —Judgment unanimously reversed on the law, new trial granted on count two of indictment and count one of indictment dismissed without prejudice to the People to re-present any appropriate charges under count one to another Grand Jury. Memorandum: We reserved decision in this matter (People v Johnson, 206 AD2d 874) and remitted the matter to Supreme Court for a reconstruction hearing (see, People v Mitchell, 189 AD2d 337; see generally, People v Odiat, 82 NY2d 872). The evidence adduced at the reconstruction hearing established that defendant was not present during the Sandoval conference conducted in chambers. Because the court ruled that defendant could be cross-examined regarding two prior convictions, it cannot be said that defendant’s presence at the Sandoval conference would have been superfluous (see, People v Favor, 82 NY2d 254, rearg denied 83 NY2d 801). Reversal is therefore required (see, People v Dokes, 79 NY2d 656). Inasmuch as defendant was convicted of the lesser included offense of manslaughter in the first degree under count one of the indictment, that count must be dismissed without prejudice to the People to represent any appropriate charges under that count to another Grand Jury (see, People v Gonzalez, 61 NY2d 633, 635; People v Jackson, 167 AD2d 893, 894). Finally, we have reviewed the remaining issues and conclude that they are without merit. (Resubmission of Appeal from Judgment of Supreme Court, Erie County, Doyle, J.—Manslaughter, 1st Degree.) Present—Denman, P. J., Fallon, Wesley, Doerr and Boehm, JJ.  