The People of the State of New York, Respondent, v. Felix Vargas, Appellant

The People of the State of New York, Respondent, v Felix Vargas, Appellant. [718 NYS2d 521] [MAJORITY] 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 NY2d 759, 760, rearg denied 69 NY2d 985; see, People v Cain, 76 NY2d 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 NY2d 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 AD2d 608, 609, lv denied 89 NY2d 985, quoting People v Caballero, 221 AD2d 459, Iv denied 88 NY2d 965). (Appeal from Judgment of Supreme Court, Monroe County, Ark, J. — Attempted Rape, 1st Degree.) Present — Pigott, Jr., P. J., Green, Pine, Kehoe and Balio, JJ.