Opinion
March 22, 1999
Writ of error coram nobis.
Ordered that the application is granted, and the decision and the order of this Court, dated February 1, 1993, is vacated; and it is further,
Ordered that the judgment of the Supreme Court, Queens County, rendered October 2, 1989, is reversed, on the law, and a new trial is ordered.
A Trial Justice's absence from the courtroom while testimony is being read back to the jury, with or without consent, is improper; it does not comport with the Justice's supervisory role, or with the established expectations and conventions that underlie the Justice's function (see, People v. Rawlings, 178 A.D.2d 619; People v. Lumpkin, 173 A.D.2d 738; People v. Silver, 240 App. Div. 259). Had the issue of the Justice's absence during the readback of the testimony of four witnesses' to the jury been called to the attention of this Court on the direct appeal from the judgment of conviction, it is likely that the defendant's conviction would have been reversed. Since the unexplained failure of counsel to raise an issue which, if raised, would have rendered a reversal or modification likely constitutes a sufficient ground upon which to predicate a finding of ineffective assistance of appellate counsel (see, People v. Rutter, 202 A.D.2d 123; People v. Rodriguez, 185 A.D.2d 198), the appellant has sustained his burden of proving ineffectiveness.
Ritter, J. P., Santucci, Thompson and Joy, JJ., concur.
[See, 190 A.D.2d 688.]