Opinion
February 5, 1990
Appeal from the Supreme Court, Kings County (Lagana, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered. The facts have been considered and are determined to have been established.
The defendant maintains that he was deprived of a fair trial by reason of the trial court's conduct during the jury deliberations. We agree and, accordingly, reverse the judgment of conviction and order a new trial.
Following the trial court's jury charge and after the jury left the courtroom to deliberate, the trial court, in the presence of defense counsel, sent a court officer into the jury room with a verdict sheet and directed him to instruct the jury to use the sheet "for an idea as to how they should deliberate". On the next day, the jury advised the trial court in writing that it could not reach a verdict on all counts of the indictment. In response thereto, a court officer, at the trial court's direction, advised the jury to continue to deliberate. In both these instances, the trial court committed reversible error by improperly delegating its judicial responsibilities to nonjudicial court personnel at critical stages in the court proceeding (see, People v Torres, 72 N.Y.2d 1007; People v Ahmed, 66 N.Y.2d 307; People v Miller, 149 A.D.2d 439; People v Payne, 149 A.D.2d 542, 544). In addition, the defendant's absolute right to be present at all material stages of a trial, including instructions to the jury, was violated (see, People v Mehmedi, 69 N.Y.2d 759, 760; People v Miller, supra). The defendant's failure to raise specific objections to the trial court's conduct does not preclude appellate review as a matter of law since errors which affect the organization of the court or the mode of proceedings prescribed by law need not be preserved (see, People v Coons, 75 N.Y.2d 796; People v Mehmedi, supra, at 760; People v Ahmed, supra, at 310). Moreover, because the defendant was absent during a material stage of his trial, the harmless error analysis is inapplicable (see, People v Mehmedi, supra, at 760-761).
We have reviewed the defendant's remaining contentions and find them to be without merit. Mollen, P.J., Lawrence, Rosenblatt and Miller, JJ., concur.