Opinion
December 11, 1989
Appeal from the Supreme Court, Queens County (Linakis, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see, People v Charles, 61 N.Y.2d 321; People v Spann, 56 N.Y.2d 469; People v Felton, 141 A.D.2d 839).
However, the defendant's fundamental right to be present at all material stages of trial was breached when the trial court responded in writing to a request for instruction from the jury without the defendant being present and without returning the jury to the courtroom (see, CPL 310.30; People v Mehmedi, 69 N.Y.2d 759; People v Bailey, 146 A.D.2d 788; People v Johnson, 145 A.D.2d 932). Contrary to the People's contention, this right of the defendant to be present during instructions to the jury is "absolute and unequivocal" and cannot be waived by defense counsel (see, People v Mehmedi, supra, at 759; People v Watson, 121 A.D.2d 487). Further, there is no evidence that the defendant ratified his counsel's purported waiver and thus the People's reliance on People v Windley ( 134 A.D.2d 386) is inapposite.
The defendant's challenge to the prosecutor's comments in summation is unpreserved for appellate review and is, in any event, without merit. Thompson, J.P., Eiber, Sullivan and Harwood, JJ., concur.