People v. Porter

221 A.D.2d 483, 633 N.Y.S.2d 1019, 1995 N.Y. App. Div. LEXIS 11914

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Rivera, J.), rendered November 10, 1993, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon 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.

A defendant has the right to be present at all material stages of the trial, including, inter alia, any nonministerial supplemental communications to a jury (see, People v Bonaparte, 78 NY2d 26; People v Ciaccio, 47 NY2d 431). A violation of this right goes to the basic organization of the court (see, People v Ahmed, 66 NY2d 307; People v Mehmedi, 69 NY2d 759). Thus, a waiver of such right by counsel is ineffective absent the express consent of the defendant, or the defendant’s ratification thereof (see, People v Carroll, 196 AD2d 546; see also generally, People v Mehmedi, supra). We find that under the circumstances of this case, the defendant’s right to be present was violated. We therefore reverse the judgment and direct that a new trial be held.

In light of this determination we need not reach the defendant’s remaining contention. Thompson, J. P., Altman, Goldstein and Florio, JJ., concur.