PEOPLE v. VARGAS (2000)

 Supreme Court erred in providing supplemental instructions to the jury in defendant's absence.   It is well settled that “[a] defendant has a fundamental right to be present at all material stages of a trial” (People v. Mehmedi, 69 N.Y.2d 759, 760, 513 N.Y.S.2d 100, 505 N.E.2d 610, rearg. denied 69 N.Y.2d 985, 516 N.Y.S.2d 1028, 509 N.E.2d 363;  see, People v. Cain, 76 N.Y.2d 119, 123, 556 N.Y.S.2d 848, 556 N.E.2d 141).   The provision of supplemental jury instructions is a material stage of the trial at which defendant's presence is required (see, CPL 310.30;  People v. Cain, supra, at 123-124, 556 N.Y.S.2d 848, 556 N.E.2d 141;  People v. Ciaccio, 47 N.Y.2d 431, 436-437, 418 N.Y.S.2d 371, 391 N.E.2d 1347;  see also, People v. Mehmedi, supra, at 760, 513 N.Y.S.2d 100, 505 N.E.2d 610).   Contrary to the People's contention, harmless error analysis is not appropriate where, as here, defendant's right to be present at a material stage of the trial was violated (see, People v. Cain, supra, at 124, 556 N.Y.S.2d 848, 556 N.E.2d 141;  People v. Mehmedi, supra, at 760-761, 513 N.Y.S.2d 100, 505 N.E.2d 610).   We further reject the People's contention that, because the supplemental instruction related to one charge only, we need not reverse the entire conviction.   The People's contention “ ‘is essentially an invitation to apply harmless error analysis * * * and it must be rejected’ ” (People v. Galdamez, 234 A.D.2d 608, 609, 652 N.Y.S.2d 65, lv. denied 89 N.Y.2d 985, 656 N.Y.S.2d 743, 678 N.E.2d 1359, quoting People v. Caballero, 221 A.D.2d 459, 634 N.Y.S.2d 392, lv. denied 88 N.Y.2d 965, 647 N.Y.S.2d 718, 670 N.E.2d 1350).

Judgment unanimously reversed on the law and new trial granted.

MEMORANDUM: