Opinion
May 18, 1992
Appeal from the Supreme Court, Kings County (Slavin, J.).
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered. The facts have been considered and are determined to have been established.
We find that, under the circumstances of this case, the trial court prematurely discharged a sworn juror (see generally, People v. Page, 72 N.Y.2d 69; People v. DiBlasio, 150 A.D.2d 792; People v. Celestin, 150 A.D.2d 385). The People's argument that the trial court's decision to discharge the juror is beyond the scope of appellate review as a question of law (see, CPL 470.05) is not without merit, inasmuch as the defendant's attorney did not expressly join in the objection registered by an attorney for a codefendant (see, People v. Buckley, 75 N.Y.2d 843; People v. Melendez, 160 A.D.2d 739). However, considering all the circumstances of this case, we find that review of this issue in the exercise of our interest of justice jurisdiction is appropriate (see, CPL 470.15 [a]).
We also find that the defendant was absent while certain testimony was read back to the jury. Contrary to the People's contention, the defense counsel's consent to this procedure may not be imputed to the defendant (see, People v. Mehmedi, 69 N.Y.2d 759; People v. Aguilar, 177 A.D.2d 197; People v. Carr, 168 A.D.2d 213; People v. Windley, 134 A.D.2d 386, 387). Absent an express ratification by the defendant, the error mandates reversal. Thus, the People's argument that the testimony which was read back related more to the codefendant than to the defendant is of no avail (see, People v. Mehmedi, supra; People v. Slattery, 173 A.D.2d 656; People v. Jones, 159 A.D.2d 644 [existence of prejudice immaterial]).
The defendant's arguments concerning the sufficiency of the evidence are without merit. Bracken, J.P., Lawrence, Miller and Copertino, JJ., concur.