99 N.Y.2d 14 (2002)
A trial court’s instruction to a jury on a verdict sheet regarding the order in which submitted charges should be considered does not violate a defendant’s right to be present during a material stage of the trial, even if the instruction is not also delivered orally.
Summary
Collins was convicted of burglary and related charges. At trial, the court initially failed to instruct the jury to consider burglary in the third degree only if they acquitted him of burglary in the second degree. After the jury retired, the court, at defense counsel’s request and in the defendant’s presence, agreed to add language to the verdict sheet instructing the jury to consider the counts in the alternative. The defendant then left the room, and the specific language was decided upon in his absence. The Court of Appeals held that providing this instruction on the verdict sheet, as authorized by CPL 310.20, did not violate the defendant’s right to be present at a material stage of the trial, nor did it constitute a mode of proceedings error excusing the lack of preservation.
Facts
Collins was charged with burglary in the second and third degrees, criminal possession of stolen property, criminal trespass, and petit larceny, stemming from entering the victim’s apartment. The second-degree burglary count involved knowingly entering and remaining unlawfully with intent to commit a crime, while the third-degree count involved breaking into the building with the same intent. After the jury retired to deliberate, the defense requested the verdict sheet direct them to consider the burglary counts in the alternative. Collins then left the courtroom temporarily.
Procedural History
The Supreme Court convicted Collins on multiple counts. The Appellate Division affirmed the judgment. Collins appealed to the New York Court of Appeals, arguing that the manner in which the jury was instructed constituted a mode of proceedings error requiring reversal, despite the lack of a timely objection.
Issue(s)
Whether instructing the jury through a verdict sheet, outside the defendant’s presence, to consider burglary charges in the alternative constitutes a mode of proceedings error that violates the defendant’s right to be present during a material stage of the trial, requiring reversal despite the absence of a timely objection.
Holding
No, because the written communication was authorized under CPL 310.20 and did not violate the defendant’s right to be present under CPL 310.30. Failure to object to the lack of supplemental oral instruction is fatal to the claim.
Court’s Reasoning
The Court of Appeals reasoned that while a defendant has the right to be present during instructions to the jury on fundamental legal principles, not every communication requires the jury to be recalled or the defendant to be present. CPL 310.20(2) authorizes a court to provide a written list of offenses and possible verdicts to the jury. Citing People v. Cole, the Court stated that a trial court may include on a verdict sheet “a direction regarding the order in which the submitted charges should be considered”. Because the instruction was authorized by statute, its submission on the verdict sheet outside the defendant’s presence was permissible. The court distinguished this situation from cases involving substantive irregularities in jury instructions where preservation is not required. The Court noted that the defendant was present when his counsel requested the alternative instruction, and his subsequent absence for the drafting of the instruction involved only a ministerial act and a purely legal argument. As such, his presence was not required.