Summary
declining to exercise “interest of justice jurisdiction to review the defendant's claim given the overwhelming evidence of the defendant's guilt”
Summary of this case from Chrysler v. GuineyOpinion
March 9, 1992
Appeal from the Supreme Court, Kings County (Pincus, J.).
Ordered that the judgment is affirmed.
At the conclusion of the jury charge, the court instructed the jurors to begin their deliberations. In addition, the court stated: "If there are any questions or additional instructions you need as to this evening [the court officer] will give it to you and he will be reporting back to me in a few minutes". The jury was then excused.
Thereafter, the court officer returned to the courtroom and stated: "In talking with the jurors, I had given them the alternative of either going to dinner now or coming back to deliberate, the jurors decided they'd rather go to the hotel right after dinner". The case was then adjourned until the following morning. The defendant never objected to this sequestration procedure.
On appeal the defendant argues that the court committed reversible error by delegating a nonministerial duty to the court officer. We disagree.
Despite the fact that the court authorized the court officer to provide the jury with "additional instructions [they would] need as to this evening", there is no indication in the record that the court officer delivered sequestration instructions to the jury, and thus, there is no reason to disturb the defendant's conviction (see, People v Bonaparte, 78 N.Y.2d 26; People v McAdoo, 178 A.D.2d 558). However, while we find that the circumstances of this case do not warrant a new trial, we emphasize that it is the better practice for the court, in the presence of the defendant and his counsel, to notify the jurors that they are going to be sequestered and that they should cease deliberations during that period (see, People v Nacey, 78 N.Y.2d 990; see also, People v Bonaparte, supra).
Further, the defendant's contention that the verdict sheet submitted to the jury was not proper is not preserved for appellate review as a matter of law since the defendant failed to object to its submission (see, People v Lugo, 150 A.D.2d 502; People v Mathis, 150 A.D.2d 613). We decline to exercise our interest of justice jurisdiction to review the defendant's claim given the overwhelming evidence of the defendant's guilt (see, People v Lugo, supra; People v Mathis, supra). Bracken, J.P., Sullivan, Lawrence and Eiber, JJ., concur.