ALLOWING THE PEOPLE’S INVESTIGATOR TO GO INTO THE JURY ROOM DURING DELIBERATIONS TO SHOW THE JURORS HOW TO OPERATE A DIGITAL RECORDER WAS A MODE OF PROCEEDINGS ERROR THAT REQUIRED REVERSAL, DESPITE THE DEFENDANT’S CONSENT TO THE PROCEDURE (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, determined the People’s investigator should not have been allowed to go into the jury room during deliberations to show the jurors how to operate a digital recorder. Although the defendant consented to the procedure, the Third Department decided the error was a “mode of proceedings” error which did not require preservation:

Pursuant to CPL 310.10 (1), a deliberating jury must be “under the supervision of a court officer” or “an appropriate public servant” and, “[e]xcept when so authorized by the court or when performing administerial duties with respect to the jurors, such court officer[] or public servant[] . . . may not speak to or communicate with [the jurors] or permit any other person to do so” … . Certainly, the People’s investigator cannot be said to be an appropriate public servant to interact with the jury in the deliberation room. Also troubling is the lack of a record of what occurred while the investigator was in the deliberation room. Indeed, the “right to a trial by jury in criminal cases is ‘fundamental to the American scheme of justice’ and essential to a fair trial. At the heart of this right is the need to ensure that jury deliberations are conducted in secret, and not influenced or intruded upon by outside factors” … . Given that the procedure that occurred here, allowing a representative of the People to interfere in the jury’s secret deliberations, goes “to the essential validity of the process and [is] so fundamental that the entire trial is irreparably tainted”… , we must reverse and remit for a new trial.  People v Jones, 2022 NY Slip Op 01069, Third Dept 2-17-22