Opinion
February 3, 1995
Appeal from the Monroe County Court, Marks, J., Celli, J.
Present — Pine, J.P., Fallon, Wesley, Callahan and Davis, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: Defendant appeals from a judgment convicting him of four counts of criminal possession of stolen property in the fourth degree, and one count each of criminal mischief in the fourth degree and disorderly conduct. We conclude that County Court erred in charging the jury and in giving additional instructions to the jury in the absence of defendant without first determining that his absence was deliberate (see, People v Brooks, 75 N.Y.2d 898; People v. Dugan, 210 A.D.2d 971; People v Law, 198 A.D.2d 857, 858, lv denied 83 N.Y.2d 807). Thus, reversal is required.
We further conclude that the court properly refused to suppress defendant's statement that the credit cards were stolen; that statement was not "the product of `express questioning or its functional equivalent'" (People v. Bryant, 59 N.Y.2d 786, 788, quoting Rhode Is. v. Innis, 446 U.S. 291, 300-301).
We have considered defendant's remaining contention and conclude that it is without merit.