Opinion
December 23, 1994
Appeal from the Chautauqua County Court, Himelein, J.
Present — Lawton, J.P., Fallon, Wesley, Doerr and Davis, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: There is no merit to the contentions that defendant's conviction of burglary in the second degree and criminal possession of stolen property in the third degree is based on legally insufficient evidence or is against the weight of the evidence (see, People v Bleakley, 69 N.Y.2d 490, 495).
We agree with defendant, however, that County Court erred in giving additional instructions to the jury in his absence without first determining that his absence was deliberate (see, People v Law, 198 A.D.2d 857, 858, lv denied 83 N.Y.2d 807). A defendant has the unequivocal right to be present when a jury is given additional instructions (see, CPL 310.30; People v Mehmedi, 69 N.Y.2d 759, 760, rearg denied 69 N.Y.2d 985). A defendant may forfeit that right when he deliberately absents himself from the courtroom after trial commences (People v Sanchez, 65 N.Y.2d 436, 443-444). Before proceeding with a trial in defendant's absence, the court must inquire into the reasons for that absence, find that the absence was deliberate and place on the record the facts and reasons for its determination (see, People v Brooks, 75 N.Y.2d 898, 899, mot to amend remittitur granted 76 N.Y.2d 746; People v Law, supra; People v Amato, 172 A.D.2d 545). Because the court failed to inquire adequately into the reasons for defendant's absence and failed to determine that defendant's absence was deliberate, a new trial is required (see, People v Law, supra; People v Amato, supra).
We have reviewed defendant's remaining contentions and conclude that they are without merit.