You are here: / / DEFENSE WAIVED ANY OBJECTION TO A PROHIBITED CONVERSATION BETWEEN A COURT...
,

DEFENSE WAIVED ANY OBJECTION TO A PROHIBITED CONVERSATION BETWEEN A COURT OFFICER AND JURORS BY ASKING THAT DELIBERATIONS CONTINUE DESPITE THE CONVERSATION; THE CONVERSATION DID NOT CONSTITUTE A MODE OF PROCEEDINGS ERROR.

The Second Department determined the defense waived objection to a court officer's conversation with three jurors during deliberations. Defense counsel asked that the jurors be questioned about their ability to continue and, after the questioning, asked that the jury continue to deliberate. The Second Department further held the communication by the court officer did not constitute a mode of proceedings error which need not be preserved. The decision includes a clear explanation of the types of issues which can be raised in a Criminal Procedure Law (CPL) 330.30 motion to set aside the verdict and the distinction between waiver and preservation:

Except when authorized by the court or when performing administerial duties with respect to the jurors, court officers may not communicate with jurors or permit any other person to do so (see CPL 310.10[1]…). In considering a motion to set aside a verdict pursuant to CPL 330.30(1), however, a trial court may only consider questions of law, not fact … . Moreover, a trial court may only consider claims of legal error under CPL 330.30(1) where those claims are preserved for appellate review … .

Waiver and preservation are separate concepts … , although they are often “inextricably intertwined” … . Waiver connotes the intentional relinquishment or abandonment of a known right … . Where a defendant assents at trial to a court's decision, agrees with the court's determination, or requests that the court take the actions the court ultimately took, the defendant cannot, after the fact, claim the action constituted error … . People v Armstrong, 2016 NY Slip Op 02843, 2nd Dept 4-13-16


You might also like
MOTION TO VACATE A REFEREE’S DEED PROPERLY DENIED, A SALE PRICE LOWER THAN MARKET VALUE DOES NOT INVALIDATE THE SALE, PURPORTED EVIDENCE OF A CONSPIRACY AMONG THE BIDDERS WAS IMPROPERLY SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS (SECOND DEPT).
The Prejudicial Effect of the Result of the Portable Breath Test (PBT) Outweighed Its Probative Value—New Trial Ordered
Town Has Duty to Defend Former Town Clerk Accused of Sexual Harassment Within the Scope of Employment
THE SECOND TRIAL VIOLATED THE DOUBLE JEOPARDY PROHIBITION; THE FIRST TRIAL COULD HAVE CONTINUED WITH ELEVEN JURORS AFTER A JUROR WAS DISQUALIFIED DURING DELIBERATIONS (SECOND DEPT).
THE NYC BOARD OF HEALTH’S RESOLUTION MANDATING VACCINATION AGAINST MEASLES IS VALID AND LAWFUL; THE OBJECTIONS RAISED ON RELIGIOUS GROUNDS WERE REJECTED BECAUSE THE RESOLUTION DID NOT SINGLE OUT, TARGET OR EVEN MENTION RELIGION (SECOND DEPT).
ALTHOUGH THE PARTY TWICE FILED FOR BANKRUPTCY WITHOUT LISTING THE MEDICAL MALPRACTICE ACTION AS AN ASSET, THE BANKRUPTCY PROCEEDING WAS SUBSEQUENTLY REOPENED AND THE ACTION WAS ADDED AS AN ASSET; AT THAT POINT THE BANKRUPTCY TRUSTEE BECAME THE PLAINTIFF IN THE MEDICAL MALPRACTICE ACTION AND THE DOCTRINE OF JUDICIAL ESTOPPEL, BASED UPON THE PARTY’S INITIAL FAILURE TO LIST THE ACTION AS AN ASSET, DID NOT APPLY TO THE TRUSTEE (SECOND DEPT).
DEFENDANTS DID NOT DEMONSTRATE CEMENT PATCH WAS A TRIVIAL DEFECT AS A MATTER OF LAW; NO EVIDENCE OF DIMENSIONS OF DEFECT SUBMITTED.
HOT PURSUIT JUSTIFIED WARRANTLESS ARREST IN DEFENDANT’S HOME (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

TRIAL JUDGE’S FAILURE TO WARN DEFENDANT OF THE CONSEQUENCES OF DISRUPTIVE... AWARDING WIFE A DISTRIBUTIVE SHARE OF HUSBAND’S MEDICAL PRACTICE AND DETERMINING HUSBAND’S...