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People v. Marks

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 16, 1990
167 A.D.2d 974 (N.Y. App. Div. 1990)

Opinion

November 16, 1990

Appeal from the Supreme Court, Erie County, Kubiniec, J.

Present — Callahan, J.P., Doerr, Boomer, Pine and Lawton, JJ.


Judgment unanimously reversed on the law and new trial granted. Memorandum: The People concede that reversal is required because the deliberating jury was not "continuously kept together under the supervision of a court officer" (CPL 310.10; People v. Coons, 75 N.Y.2d 796). Failure to sequester the jury during deliberations is an error which "`affect[s] the organization of the court or the mode of proceedings prescribed by law'" (People v. Ahmed, 66 N.Y.2d 307, 310, quoting People v. Patterson, 39 N.Y.2d 288, 295, affd. 432 U.S. 197). Although the parties agreed to let the jurors go home for the evening, failure to sequester the jury during deliberations is a fundamental error depriving defendant of a fair trial. "[T]he right protected by CPL 310.10 is of such fundamental importance that defendant can neither waive it nor consent to waive it, violation of such right is per se reversible" (People v. Dasher, 161 A.D.2d 1207, 1208).


Summaries of

People v. Marks

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 16, 1990
167 A.D.2d 974 (N.Y. App. Div. 1990)
Case details for

People v. Marks

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSEPH L. MARKS…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Nov 16, 1990

Citations

167 A.D.2d 974 (N.Y. App. Div. 1990)

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