People v. Feliciano

209 A.D.2d 634, 619 N.Y.S.2d 650

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Flug, J.), rendered January 6, 1993, convicting him of robbery in the first degree, robbery in the second degree, and grand larceny in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact were raised or considered.

The defendant contends, inter alia, that his absence during portions of the jury voir dire violated his fundamental right to be present at all material stages of trial, and therefore the judgment of conviction must be reversed and a new trial ordered (see, People v Mehmedi, 69 NY2d 759).

An examination of the minutes of the jury selection, which occurred after October 27, 1992 (see, People v Mitchell, 80 NY2d 519), shows that prospective jurors (some of whom were later excused on consent) were improperly questioned outside of the defendant’s presence regarding, inter alia, possible biases and prejudices. Thus, under the particular facts of this case, we find that a fundamental right was violated, and that the violation requires a reversal and a new trial (see, People v Antommarchi, 80 NY2d 247). Nor is a harmless error analysis appropriate (see, People v Mehmedi, supra).

In view of the foregoing, we need not reach the defendant’s remaining contentions. Ritter, J. P., Copertino, Friedmann and Florio, JJ., concur. [As amended by unpublished order entered Sept. 20, 1995.]