69 N.Y.2d 759 | NY | 1987
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be affirmed.
Defendant was indicted and tried on charges of weapons possession as a result of driving a car in which two loaded, unlicensed guns were found pursuant to a lawful stop and search by police. According to the testimony of the police officer, the search for the guns was predicated on a police officer’s observation of bullets in the console compartment
CPL 310.30 provides that, when a deliberating jury requests additional instructions, the court must return the jury to the courtroom and, after proper notice to counsel "and in the presence of the defendant”, give such requested information or instructions as the court deems proper. The People concede the court erred in proceeding contrary to CPL 310.30 and that its error presents a question of law even in the absence of objection (see, People v Ciaccio, 47 NY2d 431, 436-437). They contend, however, that the error was harmless (see, e.g., People v Mullen, 44 NY2d 1; People ex rel. Lupo v Fay, 13 NY2d 253).
Failure to comply with the statutory mandate of CPL 310.30 results in a substantial departure from a statutory provision that affects " 'the organization of the court or the mode of proceedings prescribed by law’ ” (see, People v Ahmed, 66 NY2d 307, 310). Thus, even though counsel may have consented to the procedure, an issue of law is presented for our review.
A defendant has a fundamental right to be present at all material stages of a trial (see, People v Ciaccio, 47 NY2d 431, 436, supra). CPL 310.30 makes a defendant’s right to be present during instructions to the jury absolute and unequivocal (see, CPL 310.30; People v Ciaccio, supra, pp 436-437). Because this defendant was absent during a material part of his trial, harmless error analysis is not appropriate (see, id.;
Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.
Order affirmed in a memorandum.