Opinion
February 27, 1984
Appeal by defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered December 10, 1981, convicting him of robbery in the first degree (nine counts), robbery in the second degree (three counts), criminal use of a firearm in the first degree (two counts), and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. Matter remitted to Criminal Term, to a Judge other than the Trial Judge, to hear and report on whether said Trial Judge gave preliminary instructions to the jury, including, to the extent possible, the content of such instructions, and, if not, whether defendant made any objection to the failure to so instruct; appeal held in abeyance in the interim. The court shall file its report with all convenient speed. On this record, we cannot determine with any certainty whether the trial court gave preliminary instructions (see CPL 270.40), and if no instructions were given, whether an objection was taken to the failure to so instruct. A reconstruction hearing is therefore required to determine these issues of fact (see People v Rivera, 39 N.Y.2d 519). Titone, J.P., Bracken, Brown and Rubin, JJ., concur.