PEOPLE v. VARGAS

Judgment unanimously reversed on the law and new trial granted. Memorandum: 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, rearg denied 69 N.Y.2d 985; see, People v. Cain, 76 N.Y.2d 119, 123). 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; People v. Ciaccio, 47 N.Y.2d 431, 436-437; see also, People v Mehmedi, supra, at 760). 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; People v. Mehmedi, supra, at 760-761). 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, lv denied 89 N.Y.2d 985, quoting People v. Caballero, 221 A.D.2d 459, lv denied 88 N.Y.2d 965).