People v. Gardner

—Judgment unanimously reversed on the law and new trial granted. Memorandum: Because we cannot conclude that defendant’s presence at an in-chambers Sandoval hearing would have been superfluous, the denial of defendant’s right to be present at that hearing mandates reversal (see, People v Favor, 82 NY2d 254 ; People v Dokes, 79 NY2d 656 ).

Although it is not necessary to consider the remaining issues raised by defendant, we observe that the trial court erred in admitting the victim’s tape-recorded statement under the "early outcry” or "prompt complaint” exception to the hearsay rule. While a witness may testify that a prompt complaint was made, a statement that includes the details of the incident is inadmissible (People v Rice, 75 NY2d 929 , 932; People v Riggio, 144 AD2d 951 , lv denied 73 NY2d 981 ). The court also erred in admitting opinion evidence in this rape case concerning whether it was unusual for 50% of sperm to be motile. The foundation for that evidence was insufficient because it was based solely on proof that the witness had been a nurse for 25 years; there was no proof concerning the nature