| People v Rivera |
| 2013 NY Slip Op 00360 [102 AD3d 893] |
| January 23, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Anner Rivera, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, SolomonNeubort, and Adam M. Koelsch of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Firetog, J.), rendered November 23, 2009, convicting him of criminal possession of aweapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered on thecount of the indictment charging the defendant with criminal possession of a weapon inthe second degree.
"A criminal defendant has the absolute right to be present at all material stages oftrial" (People v Dini, 292 AD2d 631, 632 [2002]; see CPL 260.20;see also Snyder v Massachusetts, 291 US 97, 105-106 [1934]). "This necessarilyincludes . . . all proceedings dealing with the court's charge, admonishmentsand instructions to the jury, where the court is required to state the fundamental legalprinciples applicable to criminal cases generally, as well as the material legal principlesapplicable to a particular case and the application of the law to the facts" (People vCiaccio, 47 NY2d 431, 436 [1979] [citations omitted]; see People v Collins,99 NY2d 14, 17 [2002]; People v Harris, 76 NY2d 810, 812 [1990]). "[T]hepresence of the defendant and his counsel is constitutionally required wheneversupplemental instructions are given" (People v Ciaccio, 47 NY2d at 437-436,citing US Const 6th Amend; NY Const, art I, § 6; see People v Harris, 76NY2d at 812). Moreover, pursuant to CPL 310.30, when a deliberating jury requestsfurther instruction, the court "must direct that the jury be returned to the courtroom. . . and in the presence of the defendant, must give such requestedinformation or instruction as the court deems proper" (People v Collins, 99NY2d at 17 [internal quotation marks omitted]; see People v Mehmedi, 69 NY2d759, 760 [1987]; People v Dini, 292 AD2d at 632; People v Galdamez,234 AD2d 608, 608 [1996]).
Here, the Supreme Court erred when it received and answered a series of questionsfrom a juror inside the robing room and outside the presence of the defendant, defensecounsel, the prosecutor, and the other jurors (see People v Dini, 292 AD2d at632). The juror's questions, which inquired into, among other topics, when the defendantcould be deemed to be responsible "by the law," were not purely ministerial as theydirectly related to the substantive legal and factual issues of the trial (see People vGaldamez, 234 AD2d at 608; cf. People v Harris, 76 NY2d at 812). Since[*2]the error affects " 'the organization of the court or themode of proceedings prescribed by law' " (People v Ahmed, 66 NY2d 307, 310[1985], quoting People v Patterson, 39 NY2d 288, 295 [1976], affd 432US 197 [1977]), preservation is not required, and the issue of law is presented for review"even though counsel may have consented to the procedure" (People v Mehmedi,69 NY2d at 760; see People v Ahmed, 66 NY2d at 310; cf. People vCordero, 308 AD2d 494, 494 [2003]). Moreover, under these circumstances,"harmless error analysis is not appropriate" (People v McCune, 98 AD3d 631, 633 [2012] [internalquotation marks omitted]; see People v Mehmedi, 69 NY2d at 760-761).
Accordingly, the judgment must be reversed and the matter remitted to the SupremeCourt, Kings County, for a new trial on the count of the indictment charging thedefendant with criminal possession of a weapon in the second degree. Angiolillo, J.P.,Dickerson, Miller and Hinds-Radix, JJ., concur.