Appeal from a judgment of the Criminal Court of the City of New York, Richmond County (Mario F. Mattei, J.), rendered December 5, 2013. The judgment convicted defendant, upon a jury verdict, of aggravated driving while intoxicated (per se) and driving while intoxicated (common law).

ORDERED that the judgment of conviction is modified, on the law and as a matter of discretion in the interest of justice, by vacating the conviction of aggravated driving while intoxicated (per se) and by vacating the sentence imposed on the conviction of driving while intoxicated (common law), and the matter is remitted to the Criminal Court for a new trial on the charges of aggravated driving while intoxicated (per se) under count one of the accusatory instrument and of the lesser included charge of driving while intoxicated (per se) under count two of the accusatory instrument, and for resentencing on the conviction of driving while intoxicated (common law).

On December 29, 2011, the People charged defendant, in an information, with, among other things, aggravated driving while intoxicated (per se) (Vehicle and Traffic Law § 1192 [2-a] [a]), driving while intoxicated (per se) (Vehicle and Traffic Law § 1192 [2]), and driving while intoxicated (common law) (Vehicle and Traffic Law § 1192 [3]). Following a jury trial, the jury found defendant guilty of aggravated driving while intoxicated (per se) and of driving while intoxicated (common law). Defendant appeals, arguing that the court erred in its instruction to the jury that a person is guilty of aggravated driving while intoxicated (per se) when he or she operates a vehicle with a blood alcohol content of .08 of one per centum by weight, and that the prosecutor's request before the jury of reciprocal Rosario matter so prejudiced the defense as to have required a mistrial.

Although not preserved for appellate review, as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]), we review the claim of error with respect to the jury instruction and agree that the jury charge, which instructed the jury that they may convict defendant of aggravated driving while intoxicated (per se) if they found that the People had proved, beyond a reasonable doubt, that her blood alcohol content was equal to or greater than .08 of one per centum by weight, represented reversible error (see Vehicle and Traffic Law § 1192 [2-a] [a] [providing that a person is guilty of aggravated driving while intoxicated per se when he or she operates a motor vehicle with a blood alcohol content of .18 of one per centum or more by weight]). "It is well settled that all the elements of a[] . . . crime which are not conceded by defendant or defendant's counsel must be charged" to the jury (People v Flynn, 79 NY2d 879, 881 [1992]), and " [n]o matter how conclusive the evidence . . . each of the . . . fundamental facts [is] for the jury to pass upon' " (People v Lewis, 64 NY2d 1031, 1032 [1985], quoting People v Walker, 198 NY 329, 334 [1910]; see e.g. People v Jagdharry, 118 AD3d 722, 724 [2014]).

With regard to the prosecutor's request before the jury for the production of defense counsel's notes with respect to defendant's prospective testimony, it is well settled that "[i]n order to avoid situations where a prosecutor would be requesting the defendant to produce evidence which he may be privileged not to produce, the request for the production of such evidence should always be made out of the hearing of the jury" (People v Damon, 24 NY2d 256, 262 n 2 [1969]). While the prosecutor's conduct violated this rule, the court's immediate curative instruction, to which the defense expressed no objection as to either content or sufficiency, clearly sufficed to cure the error. Thus, there is no basis to disturb the jury verdict convicting defendant of driving while intoxicated (common law).

While the jury found defendant guilty of common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), the court, at sentencing, indicated, without naming the offense, that defendant had been convicted of Vehicle and Traffic Law § 1192 (2). Consequently, the matter should be remitted to the Criminal Court for resentencing on the conviction of common-law driving while intoxicated.

Accordingly, the judgment of conviction is modified by vacating the conviction of aggravated driving while intoxicated (per se) and by vacating the sentence imposed on the conviction of driving while intoxicated (common law), and the matter is remitted to the Criminal Court for a new trial on the charges of aggravated driving while intoxicated (per se) under count one of the accusatory instrument and of driving while intoxicated (per se) under count two of the accusatory instrument (see CPL 470.55 [1]), and for resentencing on the conviction of driving while intoxicated (common law).

Pesce, P.J., Solomon and Elliot, JJ., concur.