Opinion
2013-01-23
The PEOPLE, etc., respondent, v. Anner RIVERA, appellant.
Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Solomon Neubort, and Adam M. Koelsch of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Solomon Neubort, and Adam M. Koelsch of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, ROBERT J. MILLER, and SYLVIA HINDS–RADIX, JJ.
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 a weapon 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 the count of the indictment charging the defendant with criminal possession of a weapon in the second degree.
“A criminal defendant has the absolute right to be present at all material stages of trial” ( People v. Dini, 292 A.D.2d 631, 632, 741 N.Y.S.2d 59;seeCPL 260.20; see also Snyder v. Massachusetts, 291 U.S. 97, 105–106, 54 S.Ct. 330, 78 L.Ed. 674). “This necessarily includes ... all proceedings dealing with the court's charge, admonishments and instructions to the jury, where the court is required to state the fundamental legal principles applicable to criminal cases generally, as well as the material legal principles applicable to a particular case and the application of the law to the facts” ( People v. Ciaccio, 47 N.Y.2d 431, 436, 418 N.Y.S.2d 371, 391 N.E.2d 1347 [citations omitted]; see People v. Collins, 99 N.Y.2d 14, 17, 750 N.Y.S.2d 814, 780 N.E.2d 499;People v. Harris, 76 N.Y.2d 810, 812, 559 N.Y.S.2d 966, 559 N.E.2d 660). “[T]he presence of the defendant and his counsel is constitutionally required whenever supplemental instructions are given” ( People v. Ciaccio, 47 N.Y.2d at 437–436, 418 N.Y.S.2d 371, 391 N.E.2d 1347, citing U.S. Const., 6th Amend.; N.Y. Const., art. I, § 6; see People v. Harris, 76 N.Y.2d at 812, 559 N.Y.S.2d 966, 559 N.E.2d 660). Moreover, pursuant to CPL 310.30, when a deliberating jury requests further instruction, the court “must direct that the jury be returned to the courtroom ... and in the presence of the defendant, must give such requested information or instruction as the court deems proper” ( People v. Collins, 99 N.Y.2d at 17, 750 N.Y.S.2d 814, 780 N.E.2d 499 [internal quotation marks omitted]; see People v. Mehmedi, 69 N.Y.2d 759, 760, 513 N.Y.S.2d 100, 505 N.E.2d 610;People v. Dini, 292 A.D.2d at 632, 741 N.Y.S.2d 59;People v. Galdamez, 234 A.D.2d 608, 608, 652 N.Y.S.2d 65).
Here, the Supreme Court erred when it received and answered a series of questions from a juror inside the robing room and outside the presence of the defendant, defense counsel, the prosecutor, and the other jurors ( see People v. Dini, 292 A.D.2d at 632, 741 N.Y.S.2d 59). The juror's questions, which inquired into, among other topics, when the defendant could be deemed to be responsible “by the law,” were not purely ministerial as they directly related to the substantive legal and factual issues of the trial ( see People v. Galdamez, 234 A.D.2d at 608, 652 N.Y.S.2d 65;cf. People v. Harris, 76 N.Y.2d at 812, 559 N.Y.S.2d 966, 559 N.E.2d 660). Since the error affects “ ‘the organization of the court or the mode of proceedings prescribed by law’ ” ( People v. Ahmed, 66 N.Y.2d 307, 310, 496 N.Y.S.2d 984, 487 N.E.2d 894, quoting People v. Patterson, 39 N.Y.2d 288, 295, 383 N.Y.S.2d 573, 347 N.E.2d 898,affd.432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281), 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 N.Y.2d at 760, 513 N.Y.S.2d 100, 505 N.E.2d 610;see People v. Ahmed, 66 N.Y.2d at 310, 496 N.Y.S.2d 984, 487 N.E.2d 894;cf. People v. Cordero, 308 A.D.2d 494, 494, 764 N.Y.S.2d 642). Moreover, under these circumstances, “harmless error analysis is not appropriate” ( People v. McCune, 98 A.D.3d 631, 633, 949 N.Y.S.2d 747 [internal quotation marks omitted]; see People v. Mehmedi, 69 N.Y.2d at 760–761, 513 N.Y.S.2d 100, 505 N.E.2d 610).
Accordingly, the judgment must be reversed and the matter remitted to the Supreme Court, Kings County, for a new trial on the count of the indictment charging the defendant with criminal possession of a weapon in the second degree.