Opinion
March 6, 1995
Appeal from the County Court, Westchester County (Pirro, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact were raised or considered.
The jury selection in this case commenced on November 2, 1992. The rule of law enunciated in People v. Antommarchi ( 80 N.Y.2d 247), which governs jury selection after October 27, 1992, is therefore applicable (see, People v. Mitchell, 80 N.Y.2d 519). The record reveals that several prospective jurors were improperly questioned outside of the defendant's presence regarding, inter alia, possible biases and prejudices. Thus, under the particular facts of this case, a fundamental right of the defendant was violated, and the violation requires reversal and a new trial (see, People v. Antommarchi, supra). Harmless error analysis is not appropriate (see, People v. Mehmedi, 69 N.Y.2d 759; People v Feliciano, 209 A.D.2d 634).
In addition, we note that the court erred in allowing the People to impeach a prosecution witness with prior statements because the witness's testimony did not "affirmatively damage" the People's case (see, People v. Andre, 185 A.D.2d 276). This error was compounded by the court's failure to instruct the jury at the time the testimony was heard that it was to be used for impeachment purposes only (see, CPL 60.35; People v Patterson, 203 A.D.2d 597; People v. Wilson, 195 A.D.2d 493). Bracken, J.P., Sullivan, Miller and Goldstein, JJ., concur.