Denman and Boomer, JJ. (dissenting). We respectfully dissent. In the unique circumstances of this case, the court’s ex parte communication with a prosecution witness, although improvident, did not violate defendant’s rights.
After the testimony of Fritzen, the undercover officer, the court perceived a potential Goggins problem (see, People v *575Goggins, 34 NY2d 163) as a result of defense counsel’s insistence that the confidential informant be produced or identified. The court, without notifying either counsel, took Fritzen into chambers in an attempt to persuade him to reveal the informant’s identity in order to eliminate a Goggins issue and obviate the need for making a determination whether disclosure of the informant’s identity was necessary. Fritzen refused to reveal the informant’s identity. Subsequently, the court, after examining case law, placed the fact of its in camera discussion on the record and informed the parties that it had determined that the informant’s identity need not be divulged. The court apparently concluded that, because the reliability of Fritzen’s testimony identifying defendant as the seller of cocaine was not challenged, and was corroborated by a surveillance officer, there was no need for disclosure of the informant’s identity (see, e.g., People v Brown, 34 NY2d 163, 169, 172-173). The majority finds no fault with that determination. The majority concludes, however, that the court’s ex parte communication with Fritzen violated defendant’s right to be present and his right to counsel.
We disagree. In order to show a violation of his right to be present, defendant was required to show that the ex parte discussion was a "critical stage” of trial, and that defendant’s absence therefrom had a "substantial effect on his ability to defend” (People v Mullen, 44 NY2d 1, 5; see, Snyder v Massachusetts, 291 US 97, 108; People v Rodriguez, 76 NY2d 918, 921). The court’s discussion with Fritzen concerned only "questions of law or procedure”, and thus defendant’s absence therefrom did not affect his ability to defend himself against the charges (People v Velasco, 77 NY2d 469, 472; People v Rodriguez, supra).
We also disagree with the majority’s conclusion that the ex parte communication violated defendant’s right to counsel. The dictate of Goggins, that "the decision as to whether the informant’s identity should be disclosed must not be resolved in an ex parte proceeding” (People v Goggins, supra, at 168), is not applicable here. The ex parte proceeding was not conducted for the purpose of deciding the Goggins issue, but to forestall or avoid a Goggins issue by persuading the witness to disclose the informant’s identity voluntarily. After failing in that regard, the court then addressed the question whether this case presented a Goggins issue, ultimately concluding that it did not. The court apparently based that decision on the nature of the trial proof, in particular the minor role played by the informant in the transaction and the strength of the *576People’s identification evidence. The court did not base its determination on anything that transpired during the ex parte conversation with the witness nor is there any contention that it did. Moreover, the court rendered its decision after hearing argument on the issue from the parties and considering the authorities submitted by them. Viewed in that light, the majority’s concerns that the court’s action violated Gog-gins are unfounded.
Even if the court’s conduct is deemed technically to violate defendant’s rights, any error is harmless. The ex parte communication did not relate to the substance of the witness’s testimony, did not concern defendant’s guilt or innocence and did not relate to the court’s determination that the case did not present a Goggins problem. Defendant can point to no prejudice to his defense as a result of the court’s action, and we perceive none. (Appeal from Judgment of Onondaga County Court, Mulroy, J. — Criminal Sale Controlled Substance, 2nd Degree.) Present — Callahan, J. P., Denman, Boomer, Balio and Lowery, JJ.