Kassal and Smith, JJ., dissent in a memorandum by Smith, J., as follows: I would reverse the conviction for the criminal sale of a controlled substance in the third degree and remand for a new trial for two reasons. First, the trial court did not rule on defendant’s motion for a mistrial following the testimony of a police officer that she had destroyed her scratch *531notes. This was a "buy and bust” operation in which the officer had written down a description of the alleged seller. In a case which appears to be dispositive of this, the Court of Appeals reversed a conviction and ordered a new trial where a police officer had destroyed his scratch notes, the defendant had asked for a sanction and the court had refused to give it. (People v Wallace, 76 NY2d 953 [1990]; see also, People v Geathers, 172 AD2d 134.) As in Wallace, there is no dispute that the notes constituted Rosario material.
Second, reversal is warranted because of the absence of the defendant from a Sandoval hearing (People v Sandoval, 34 NY2d 371 [1974]). The absence of a defendant from a Sandoval hearing seems to be a recurring problem. When a defendant is absent the People may argue, as here, that no objection was made to the defendant’s absence and only legal arguments were made. I believe that it is time to state clearly that like all other pretrial hearings, the defendant has a right to be present at a Sandoval hearing. (See, People v Hubener, 133 AD2d 233 [1987].) That hearing deals specifically with the prior criminal record of a defendant, a record which is uniquely within the knowledge of a defendant, and the testimony of a defendant should he or she take the stand.
In this particular case, the record reveals only that the court made its Sandoval decision followed by questions from the attorneys and a clarification of the decision. It is at least conceivable and more likely probable that some discussion of the prior record of the defendant was had before the court put its decision on the record.
For these two reasons, reversal is required.