People v. Vargas

Judgment unanimously reversed on the law and new trial granted. Memorandum: Supreme Court erred in providing supplemental instructions to the jury in defendant’s absence. It is well settled that “[a] defendant has a fundamental right to be present at all material stages of a trial” (People v Mehmedi, 69 NY2d 759 , 760, rearg denied 69 NY2d 985 ; see, People v Cain, 76 NY2d 119 , 123). The provision of supplemental jury instructions is a material stage of the trial at which defendant’s presence is required (see, CPL 310.30; People v Cain, supra, at 123-124 ; People v Ciaccio, 47 NY2d 431 , 436-437; see also, People v Mehmedi, supra, at 760 ). Contrary to the People’s contention, harmless error analysis is not appropriate where, as here, defendant’s right to be present at a material stage of the trial was violated (see, People v Cain, supra, at 124 ; People v Mehmedi, supra, at 760-761 ). We further reject the People’s contention that, because the supplemental instruction related to one charge only, we need not reverse the entire conviction. The People’s contention “ ‘is essentially an invitation to apply harmless error analysis * * * and it must be rejected’ ” (People v Galdamez, 234 AD2d 608 , 609, lv denied 89 NY2d 985 , quoting People v Caballero, 221 AD2d 459 , Iv denied 88 NY2d 965 ). (Appeal from Judgment of Supreme Court, Monroe County, Ark, J. — Attempted Rape, 1st Degree.) Present — Pigott, Jr., P. J., Green, Pine, Kehoe and Balio, JJ.