Summary
holding objection to jury selection process waived where not raised until after entire panel had been sworn
Summary of this case from Epps v. Commissioner of Correctional ServicesOpinion
April 2, 1979
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered June 14, 1977, convicting him of criminal possession of stolen property in the second degree, upon a jury verdict, and imposing sentence. Judgment affirmed. Appellant complains that the jury selection procedure followed by the trial court violated the provisions of CPL 270.15 and his right to be tried by a fair and impartial jury. That procedure required that each juror be removed to the jury room after he or she was sworn to await the selection of the entire panel, thus separating the sworn jurors from prospective jurors during the continued voir dire. We hold that the procedural objection was waived since it was not raised until after the entire panel had been sworn, at which point the trial court could not have followed a different procedure, in the exercise of its discretion, even if it had been so inclined (see, e.g., People v. Seligman, 35 A.D.2d 591, mod on other grounds 28 N.Y.2d 788). We find no error in the trial court's resubmission of the larceny count to the jury after the latter came back with an inconsistent verdict on the burglary and larceny charges (see CPL 310.50; People v. Robinson, 45 N.Y.2d 448; People v. Salemmo, 38 N.Y.2d 357). Moreover, the absence of any timely formal objection to resubmission on the record would require a finding of waiver (see People v. Quilles, 48 A.D.2d 933). We further hold that the conceded error concerning impeachment on a collateral matter (see People v. Schwartzman, 24 N.Y.2d 241) was also waived and, in any event, was harmless upon this record (see People v. Crimmins, 36 N.Y.2d 230), and that the notice provision of CPL 710.30 was not violated when an oral statement made by appellant, which could properly have been used to impeach him on his own cross-examination, inadvertently came in on cross-examination of one of the police officers. Hopkins, J.P., Damiani, Rabin and Mangano, JJ., concur.