PEOPLE v. SHAW (2007)

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered January 3, 2005, convicting defendant, after a jury trial, of rape in the first degree and burglary in the second and third degrees, and sentencing him, as a second violent felony offender, to an aggregate term of 20 to 40 years, unanimously reversed, on the law, and the matter remanded for a new trial.

 When defense counsel advised the court that a juror had inappropriately approached him and made comments indicating a possible bias against the defense, the court should have granted counsel's request to make an inquiry of the juror with respect to her qualification (see CPL 270.35;  People v. Buford, 69 N.Y.2d 290, 299, 514 N.Y.S.2d 191, 506 N.E.2d 901 [1987] ).   Under the circumstances presented, that error is not subject to harmless error analysis (see People v. Dotson, 248 A.D.2d 1004, 670 N.Y.S.2d 147 [1998], lv. denied 92 N.Y.2d 851, 677 N.Y.S.2d 81, 699 N.E.2d 441 [1998];  see also People v. Anderson, 70 N.Y.2d 729, 730, 519 N.Y.S.2d 957, 514 N.E.2d 377 [1987] ).   Since a new trial is required based on the foregoing, we need not reach defendant's remaining arguments, including those contained in his pro se supplemental brief.