The People of the State of New York, Respondent, v. James Durda, Appellant

The People of the State of New York, Respondent, v James Durda, Appellant. [696 NYS2d 609] [MAJORITY] —Judgment unanimously affirmed. Memorandum: Upon remittitur to Supreme Court for a reconstruction hearing (People v Durda, 259 AD2d 996), the court properly determined, based upon the testimony adduced at the hearing (see, People v Alomar, 93 NY2d 239), that the People’s Ventimiglia application was decided on papers alone and that no off-the-record proceeding occurred. We conclude, therefore, that the People met their burden at the reconstruction hearing of establishing by a preponderance of the evidence that defendant was not denied the right to be present at a Ventimiglia proceeding (see, People v Terry, 225 AD2d 1058, lv denied 88 NY2d 886). We further conclude that the verdict is based upon sufficient evidence and is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). (Resubmission of Appeal from Judgment of Supreme Court, Erie County, Burns, J. — Criminal Possession Controlled Substance, 3rd Degree.) Present — Hayes, J. P., Wisner, Pigott, Jr., Scudder and Callahan, JJ.