People v. Pinero

220 A.D.2d 540, 632 N.Y.S.2d 205, 1995 N.Y. App. Div. LEXIS 9947

Opinion

—Appeal by the defendant from a judgment of the County Court, Rockland County (Nelson, J.), rendered December 7, 1993, convicting him of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, and a new trial is ordered. The facts have been considered and determined to have been established.

Reversal is mandated in this case by virtue of the Court of Appeals decision in People v Antommarchi (80 NY2d 247). The prosecutor and the defense counsel, in the presence of the court but in the absence of the defendant, questioned a prospective juror about his employment as an FBI agent and its potential influence on his objectivity. Such questioning of a prospective juror in the absence of the defendant has been held to be improper, and reversal is mandated, despite the absence of an objection by the defendant (see, People v Antommarchi, supra, at 250). Moreover, harmless error analysis is inapplicable (People v Mehmedi, 69 NY2d 759; People v Daniels, 213 AD2d 419).

We have examined the defendant’s remaining contentions and find them to be without merit. Balletta, J. P., Rosenblatt, Ritter and Pizzuto, JJ., concur.