Opinion
January 9, 1990
Appeal from the Supreme Court, New York County (Ira F. Beal, J.).
At the close of the first day of deliberations, defense counsel requested that the jury be brought in and instructed not to deliberate outside the jury room. Despite counsel's insistence, the Trial Justice directed a court officer to inform the jury that they were not to discuss the case among themselves until their return to court the following morning. Upon this appeal, defendants contend that the court improperly delegated a judicial function, thus depriving them of their right to be present at all material stages of the proceedings.
We agree. A defendant's presence, with counsel, is imperative whenever it bears a substantial relationship to his defense to the charges against him, which includes "all proceedings dealing with the court's charge, admonishments and instructions to the jury" (People v. Ciaccio, 47 N.Y.2d 431, 436). The jury having been charged and having begun deliberations, the trial had reached a critical stage, and the delegation of a judicial function to a court officer was improper (see, People v. Torres, 72 N.Y.2d 1007). Moreover, it is impossible to assess the extent to which the court's instructions and admonitions were accurately communicated to the jury. We therefore conclude that reversible error was committed (People v. Mercado, 154 A.D.2d 556 [2d Dept 1989]; People v. Payne, 149 A.D.2d 542 [2d Dept 1989]).
In view of our disposition, we deem defendants' other contentions to be moot.
Concur — Ross, J.P., Asch, Rosenberger, Smith and Rubin, JJ.