People v. Dasher

161 A.D.2d 1207, 556 N.Y.S.2d 422, 1990 N.Y. App. Div. LEXIS 9276

Opinion

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 NY2d 796; People v Smith, 161 AD2d 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 NY2d 307, 310, rearg denied 67 NY2d 647, quoting People v Patterson, 39 NY2d 288, 295, affd 432 US 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. (Appeal from judgment of Monroe County Court, Egan, J.—robbery, second degree.) Present—Dillon, P. J., Boomer, Pine, Davis and Lowery, JJ.