People v. Bello

609 N.Y.S.2d 162 | NY | 1993

82 N.Y.2d 862 (1993) 631 N.E.2d 104 609 N.Y.S.2d 162

The People of the State of New York, Respondent,
v.
Dwayne Bello, Appellant.

Court of Appeals of the State of New York.

Argued November 11, 1993. Decided December 15, 1993.

Robert P. Rickert, Syracuse, for appellant.

William J. Fitzpatrick, District Attorney of Onondaga County, Syracuse (Gary T. Kelder of counsel), for respondent.

Chief Judge KAYE and Judges SIMONS, TITONE, HANCOCK, JR., BELLACOSA, SMITH and LEVINE concur.

MEMORANDUM.

The order of the Appellate Division should be affirmed.

CPL 310.10 provides that once a jury has retired to deliberate, it "must be continuously kept together under the supervision of a court officer or court officers." In People v Webb (78 N.Y.2d 335) we held that a defendant may waive the CPL 310.10 jury sequestration requirement (id., at 340). Here, defendant argues that such waivers must be made by the accused personally, and that his attorney's waiver on the record was insufficient. We disagree.

In Webb, both the defendant and his attorney expressly agreed to the waiver (id., at 337; see also, People v Paul, 79 N.Y.2d 970, 971). Nothing in Webb, however, required that defendant personally consent to the waiver, or that the record state that counsel discussed the matter with defendant and that he knowingly and intelligently waived the sequestration requirement. Indeed, in Webb we concluded that "the sequestration provision does not implicate fundamental rights that are an integral part of the trial"; rather, the requirement "is entirely statutory and reflects no established common-law right of the defendant" (78 N.Y.2d 335, 339-340, supra; see, id., at 340, n). Thus, in this case — where counsel stipulated before the court, on the record and in the presence of defendant, that the jury be permitted to go home overnight after it had commenced deliberations — we hold that such consent by counsel effectively waived the statutory sequestration requirement (see, Schneckloth v Bustamonte, 412 U.S. 218, 237; People v Ferguson, 67 N.Y.2d 383, 390; People v Rosen, 81 N.Y.2d 237, 244-245).

Order affirmed, in a memorandum.