Opinion
September 27, 1990
Appeal from the Supreme Court, New York County, William Davis, J.
Defendant was charged with robbery and possession of a weapon after he allegedly attacked, with a razor, security guards who had observed defendant place store merchandise under his jacket. After the jury had been charged, on the second day of deliberations, before the defendant was produced by the Department of Correction, the jury sent the court a note which read: "Is the jury required to be unanimous on charge [number] 1, robbery in the first degree, in order to consider charge 1A, petit larceny. In other words if we are undecided on charge [number] 1, do we then decide on 1A?" By the time defendant was produced, the jury had reached a verdict convicting defendant of robbery in the first degree and acquitting him of possession of a weapon. The note was never answered.
"A defendant has a fundamental right to be present at all material stages of a trial". (People v. Mehmedi, 69 N.Y.2d 759, 760, rearg denied 69 N.Y.2d 985.) The giving of instructions to a jury constitutes a material stage requiring the defendant's presence. (People v. Ciaccio, 47 N.Y.2d 431, 436-437.) The court properly did not respond to the jury's note in the absence of defendant. The issue then remaining is whether the defendant was prejudiced by the failure of the court to respond to the jury's note. (People v. Agosto, 73 N.Y.2d 963.) Defendant suffered no prejudice. By convicting defendant of the top count, the jury resolved any question about how to proceed to deliberate upon the lesser included offense.
Defendant's remaining contention that he was improperly adjudicated a second violent felony offender is unpreserved for appellate review.
Concur — Murphy, P.J., Sullivan, Carro and Milonas, JJ.