Summary
referring to failure to sequester the jury as "procedural error"
Summary of this case from Prince v. StateOpinion
May 11, 1990
Appeal from the Monroe County Court, Egan, J.
Present — Dillon, P.J., Boomer, Pine, Davis and Lowery, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: It was error for the court to fail to sequester the jury during deliberations as required by CPL 310.10 (People v. Coons, 75 N.Y.2d 796; People v. Smith, 161 A.D.2d 1160 [decided herewith]). The procedural error claimed here has been classified as among those "`that would affect the organization of the court or the mode of proceedings prescribed by law'" (People v. Ahmed, 66 N.Y.2d 307, 310, rearg denied 67 N.Y.2d 647, quoting People v Patterson, 39 N.Y.2d 288, 295, affd 432 U.S. 197). Since the right protected by CPL 310.10 is of such fundamental importance that defendant can neither waive it nor consent to it, violation of such right is per se reversible.