Opinion
March 19, 1990
Appeal from the Supreme Court, Kings County (Aiello, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact have been raised or considered.
The defendant maintains that he was deprived of a fair trial by reason of the trial court's conduct during the jury deliberations. We agree.
Following the trial court's jury charge and after the jury left the courtroom to deliberate, the trial court received a note from the jury indicating that "[t]here is a split of seven to five" and asking the court to "inform us as to the next step". With the consent of counsel for both parties and without bringing the jury into the courtroom, the court sent the clerk into the jury room with a message to "continue deliberating". Thus, the trial court committed reversible error by improperly delegating its judicial responsibilities to nonjudicial court personnel at a critical stage in the court proceeding (see, People v Torres, 72 N.Y.2d 1007; People v Ahmed, 66 N.Y.2d 307; People v Miller, 149 A.D.2d 439; People v Payne, 149 A.D.2d 542, 544; People v Cooper, 158 A.D.2d 465). In addition, the defendant's absolute right to be present at all material stages of a trial, including instructions to the jury, was violated (see, People v Mehmedi, 69 N.Y.2d 759, 760; People v Miller, supra). The defendant's failure to raise specific objections to the trial court's conduct does not preclude appellate review as a matter of law since errors which affect the organization of the court or the mode of proceedings prescribed by law need not be preserved (see, People v Coons, 75 N.Y.2d 796; People v Mehmedi, supra, at 760; People v Ahmed, supra, at 310). Moreover, because the defendant was absent during a material stage of his trial, the harmless error analysis is inapplicable (see, People v Mehmedi, supra, at 760-761).
We have reviewed the defendant's remaining contentions and find them to be without merit. Mangano, J.P., Thompson, Bracken and Rubin, JJ., concur.