Opinion
November 13, 1995
Appeal from the County Court, Nassau County, Lipp, J., Wexner, J.
Ordered that the judgment is reversed, on the law, and a new trial ordered.
As the People concede, the defendant was absent from the courtroom when supplemental instructions were given to the jury. It is well settled that this error was a serious procedural error to which harmless error analysis does not apply (see, CPL 310.30; People v Mehmedi, 69 N.Y.2d 759; see also, People v Cain, 76 N.Y.2d 119; People v Ciaccio, 47 N.Y.2d 431). It is also well settled that defense counsel's consent thereto may not be imputed to the defendant (see, People v Lara, 199 A.D.2d 419; People v Ali, 196 A.D.2d 544; People v Jones, 159 A.D.2d 644).
The People argue that, since the supplemental instruction ultimately related to only one of the crimes of which the defendant was convicted, a reversal of that conviction only is warranted. This argument, however, is essentially an invitation to apply harmless error analysis to the circumstances of this appeal, and it must be rejected (see, People v Mehmedi, supra; see also, People v Barker, 183 A.D.2d 835; People v Hewlett, 133 A.D.2d 417). Sullivan, J.P., Rosenblatt, Miller and Thompson, JJ., concur.