dissents and votes to reverse the judgment appealed from, on the law and as a matter of discretion in the interest of justice, and to order a new trial, with the following memorandum:
In this case which rests essentially on the credibility of *734witnesses from each side of a conflict between feuding neighbors, I cannot agree with the majority that we should excuse, as harmless error, judicial conduct which it concedes "clearly fell outside the acceptable bounds of discretion”. I therefore dissent and vote to reverse the judgment appealed from and to remit the matter for a new trial.
As the majority notes, after the court delivered its instructions, the jury retired and then sent a note requesting both a reading back of certain testimony and a written "list” of the elements of each crime charged. At the ensuing bench conference the defense counsel objected to "any written list” and the court then advised the jury that it could not be given a list (see, CPL 310.30). The court did not, however, stop there. Without consultation with or prior notice to counsel, without any request therefor from the jury, and without benefit of the cautionary instructions this court has held should be delivered before the commencement of deliberations and which it has characterized as "mandatory”, "critical”, and "essential” for proper jury deliberations (see, People v DiLuca, 85 AD2d 439, 445-446; see also, People v Anderson, 151 AD2d 335), the trial court here directed the court clerk to distribute to the jury paper and pencils and thereafter made a comment which was tantamount to an instruction that each juror could make his or her own list in violation of what is authorized by law (cf., People v Owens, 69 NY2d 585). The court proceeded to recite the elements of each of the crimes charged, pausing at various points to inquire directly of the jury as to whether it wished particular terms defined and, after examples were given, to inquire if the instructions, "answered your requirement”. In addition, oral questions from the jurors were entertained and answered and it appears from the record that the jurors were openly sharing notes (but see, People v Morales, 159 AD2d 86; People v Carballo, 158 AD2d 701).
When the jury retired to resume its private deliberations, the defense counsel, who, during the course of the trial had been admonished to refrain from stating the reasons for his objections in front of the jury, moved for a mistrial on account of the court’s distribution of paper and pencils for note-taking and list-making purposes and on the ground that the court had engaged in a direct dialogue with the jurors rather than obtaining written questions from them (see, CPL 310.30).
Some 40 minutes later, the prosecutor suggested that the court deliver a cautionary instruction with respect to the jurors having been afforded the opportunity to take notes. However, the court declined to do so unless there was consent *735from the defense counsel, who declined to give it, asserting that the damage had “already [been] done”. Sometime thereafter, the jury sent a note seeking further clarification of the court’s charge. Notwithstanding counsel’s earlier application for a mistrial, the court once again entertained oral questions from the jury. During the ensuing colloquy with the jurors, there were objections and unrecorded bench conferences. When the jury again retired, the defense counsel again made application for a mistrial on the ground that the questions and colloquy between the court and the jury were improper and because what occurred constituted public deliberations. The defense counsel also objected to the substance of the court’s responses to questions from the jury, noting that there was no emphasis on or mention of the defense and that the court “went further” than it had previously indicated, apparently at a bench conference, that it would.
The majority recognizes the dangers associated with juror notetaking (see, People v DiLuca, supra; see also, People v Morales, supra; People v Anderson, supra; cf., People v Tucker, 77 NY2d 861), even where the requisite preliminary cautionary instructions on the taking and proper use of the notes have been given (see, People v DiLuca, supra; People v Morales, supra). Those dangers can only increase dramatically when accompanied by the erroneous comment that the court cannot stop jurors from writing. The majority also recognizes that by engaging in colloquy with the jury and entertaining its oral questions, the trial court, in contravention of statute and judicial precedent, deprived the defendant and his counsel of notice of what the jury’s questions were and of the opportunity to confer with the court before a response was formulated (see, People v O’Rama, 78 NY2d 270; see also, People v Carballo, supra). The majority nonetheless concludes that the “inadequate” conduct of the trial court does not warrant reversal because of the “counterveiling circumstances” that the issues are not preserved for appellate review, and that the proof of guilt is “overwhelming”.
It is my view that defense counsel objected to the unexpected conduct of the trial court as soon as he could do so without risking further prejudice to the defendant and without violating the court’s prohibition against stating grounds for objection in the jury’s presence (see, People v Anderson, supra). Moreover, I am not persuaded that the belated cautionary instruction requested by the People could have dissipated the effect of the court’s errors (see, People v DiLuca, supra; see also, People v Sullivan, 160 AD2d 161, 163). The *736majority has, in any event, addressed the merits, the nature of which does not change simply because of a technical failure to interpose an objection at the earliest possible moment. And apart from the fact that I do not find the evidence of guilt to be overwhelming, I regard the errors here, when taken together, as so contrary to what is necessary to ensure proper jury deliberations as to deprive the defendant of a fair trial. I am thus of the opinion that review and its consequences cannot be avoided on "failure to preserve” grounds, that the "harmless error” analysis relied on by the majority is not appropriate in this case, and that, because of the inherently prejudicial conduct of the trial court during the critical instruction and deliberation stage of the trial (see, People v O’Rama, supra, at 279-280; cf., People v Ahmed, 66 NY2d 307; People v Crimmins, 36 NY2d 230), reversal and a new trial are required.