Opinion
Submitted May 3, 1999
June 21, 1999
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Finnegan, J.), rendered October 23, 1997, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.
Herbert Kellner, Smithtown, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Nina M. Sas of counsel), for respondent.
LAWRENCE J. BRACKEN, J.P., CORNELIUS J. O'BRIEN, GABRIEL M. KRAUSMAN, LEO F. McGINITY, JJ.
DECISION ORDER
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 defendant is entitled to a new trial because of errors committed by the court in allowing the introduction into evidence of the $190 taken from him at the time of his arrest, failing to respond meaningfully to the jury's request for a readback of testimony, and because of prosecutorial misconduct relative to the questioning of a witness ( see, People v. Lewis, 262 A.D.2d 584 [decided herewith]).
We also note that the trial court erred in stating that the absence of the defendant from a portion of the proceedings was a result of "his own choosing". The court erred in deviating from the standard charge ( see, 1 CJI [NY] 4.22, at 166).
In light of our determination that a new trial is necessary, we need not reach the defendant's remaining contentions.