People v. Brown

262 A.D.2d 569, 693 N.Y.S.2d 606, 1999 N.Y. App. Div. LEXIS 7012

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Finnegan, J.), rendered October 23, 1997, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.

The defendant is entitled to a new trial because of errors committed by the court in allowing the introduction into evidence of the $190 taken from him at the time of his arrest, failing to respond meaningfully to the jury's request for a read-back of testimony, and because of prosecutorial misconduct relative to the questioning of a witness (see, People v Lewis, 262 AD2d 584 [decided herewith]).

We also note that the trial court erred in stating that the absence of the defendant from a portion of the proceedings was a result of “his own choosing”. The court erred in deviating from the standard charge (see, 1 CJI [NY] 4.22, at 166).

In light of our determination that a new trial is necessary, we need not reach the defendant’s remaining contentions. Bracken, J. P., O’Brien, Krausman and McGinity, JJ., concur. [See, 173 Misc 2d 542.]