People v. Wooden

—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 NY2d 898 ; People v Dugan, 210 AD2d 971 ; People v Law, 198 AD2d 857 , 858, Iv denied 83 NY2d 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 NY2d 786 , 788, quoting Rhode Is. v Innis, 446 US 291 , 300-301).

We have considered defendant’s remaining contention and conclude that it is without merit. (Appeal from Judgment of Monroe County Court, Marks, J., sentencing; Celli, J., trial—Criminal Possession Stolen Property, 4th Degree.) Present—Pine, J. P., Fallon, Wesley, Callahan and Davis, JJ.