Opinion
October 22, 1990
Appeal from the Supreme Court, Kings County (Goldman, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact have been raised or considered.
During the first day of deliberations, the jury sent a note to the court stating that it had reached an impasse. The court clerk noted for the record that the court had instructed a court officer to go into the jury room and tell the jury to continue deliberating. This constituted reversible error, as the court impermissibly delegated its judicial responsibilities to nonjudicial personnel and deprived the defendant of his right to be present during a material stage of the trial (see, People v Torres, 72 N.Y.2d 1007; People v. Johnson, 160 A.D.2d 667; People v. Jones, 159 A.D.2d 644; People v. Cooper, 158 A.D.2d 465). As the defendant was absent from a material stage of the trial, harmless error analysis is inapplicable (see, People v. Mehmedi, 69 N.Y.2d 759; People v. Johnson, supra). Furthermore, the defendant's failure to object to the court's conduct does not preclude appellate review as errors which affect the organization of the court or the mode of proceedings prescribed by law need not be preserved (see, People v. Coons, 75 N.Y.2d 796; People v. Jones, supra; People v. Johnson, supra).
We also note that the court erred in submitting a verdict sheet to the jury which defined the elements of each count in statutory language, absent the consent of the parties (see, People v. Nimmons, 72 N.Y.2d 830). Thompson, J.P., Brown, Kunzeman and Rosenblatt, JJ., concur.