Defendant and codefendant Juan Morales were charged with criminal sale of a controlled substance in the third degree arising out of a buy-and-bust operation conducted on February 12, 1987. Juan Morales was additionally charged with criminal possession of a controlled substance in the third degree. After a joint trial, the jury found defendant and Juan Morales guilty of the charges.
On the appeal of codefendant Juan Morales, we reversed and remanded for a new trial holding that "defendant was deprived of a fair trial when Criminal Term permitted two jurors to take notes during the supplemental charge, over the objections of counsel, the codefendant's counsel and the prosecutor" (People v Morales, 159 A.D.2d 86, 87). For the same reasons set forth in Justice Asch's opinion in Morales, we now conclude that defendant's conviction must be reversed.
In light of our determination, we need not reach defendant's additional contentions that she was deprived of a fair trial by the prosecutor's comments on summation and by the court's failure to instruct the jury not to speculate about whether school was closed on the arrest date and its refusal to take judicial notice of that fact.
Concur — Ross, J.P., Rosenberger, Kassal and Wallach, JJ.
Rubin, J., concurs on constraint of People v. Morales ( 159 A.D.2d 86).