Opinion
February 1, 1991
Appeal from the Supreme Court, Monroe County, Mark, J.
Present — Dillon, P.J., Denman, Green, Lawton and Davis, JJ.
Judgment unanimously reversed on the law and new trial granted, in accordance with the following Memorandum: The court's Sandoval ruling (see, People v Sandoval, 34 N.Y.2d 371) violated the rule established in People v Betts ( 70 N.Y.2d 289). Under that rule, "a defendant is entitled to a pretrial ruling, based on the assertion of the privilege against self-incrimination, precluding the prosecution from cross-examining for credibility purposes only as to pending unrelated criminal charges if defendant takes the stand as a witness at the trial" (People v Betts, supra, at 291). Here, the court's Sandoval ruling permitted inquiry into the facts of a pending unrelated charge, and therefore constituted reversible error.
It was error for the court to rule that defendant would be permitted to introduce his expert testimony only if he waived his right to challenge certain evidence that was inadmissible (see, People v Caserta, 19 N.Y.2d 18, 21; People v Trowbridge, 305 N.Y. 471).
Finally, the court clerk's unsupervised contact with the jury is per se reversible error. Communication between court personnel and the jurors in the absence of defendant and without notification to him or his attorney constituted a violation of defendant's right to be present at all critical stages of trial (see, People v Mehmedi, 69 N.Y.2d 759, 760, rearg denied 69 N.Y.2d 985; People v Owens, 69 N.Y.2d 585, 590; People v Nichols, 163 A.D.2d 904). Further, the unsupervised communication between court personnel and the jurors violated defendant's right to the presence of the Trial Judge at a critical stage (People v Torres, 72 N.Y.2d 1007, 1008-1009; People v Ahmed, 66 N.Y.2d 307, 311-312, rearg denied 67 N.Y.2d 647; People v Nichols, supra). Those errors were compounded in this case when the court clerk furnished the jurors with a fact not in evidence. Although the People argued that defendant waived any error and that any error was harmless, such errors cannot be waived or consented to by defendant and are not subject to harmless error analysis (People v Mehmedi, supra, at 760-761; People v Ahmed, supra; People v Nichols, supra).