THE PEOPLE &C., RESPONDENT, v. VICTOR MONROE, APPELLANT.
90 N.Y.2d 982, 688 N.E.2d 491, 665 N.Y.S.2d 617 (1997).
October 23, 1997
2 No. 159
(97 NY Int. 0175)
Decided October 23, 1997
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
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Susan E. Kriete, for appellant.
Thomas M. Ross, for respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed. Defendant was
convicted, after a jury trial, of second degree murder in the shooting
death of an off duty corrections officer in Brooklyn. On five
different occasions during thethree week trial, the court permitted
the jury to examine various exhibits which had been received in
evidence. Each of these viewings occurred in the jury room outside the
presence of the court, the attorneys and defendant, but with
defendant's awareness and without objection. Defendant argues that
this procedure was reversible error. Under the circumstances presented
here, we disagree.
Contrary to defendant's contention, the judge's absence from these
viewings did not constitute an error affecting "the organization of
the court or the mode of proceedings proscribed by law" which can be
reviewed on appeal even absent a timely objection in the trial court (
People v Patterson, 39 NY2d 288, 294 296, aff'd sub nom. Patterson
v New York, 432 US 197). It is true that an integral part of a
defendant's right to a jury trial is the supervision and active
participation of a judge, and when a judge's absence from trial
proceedings prevents performance of an essential, nondelegable
judicial function reversal is required ( see, People v Toliver, 89
NY2d 843, 844 845; People v Torres, 72 NY2d 1007, 1008 1009; People
v Ahmed, 66 NY2d 307, 311 312).
In this case, however, the jury examined the exhibits only after they
SNIPPETS:
On five different occasions during thethree week trial, the court permitted the jury to
Each of these viewings occurred in the jury room outside the presence of the court, the
Contrary to defendant's contention, the judge's absence from these viewings did not
It is true that an integral part of a defendant's right to a jury trial is the supervision
Before each viewing and at other times during the trial, the judge admonished the jury not to
the viewings didnot require any rulings or instructions and did not implicate any of the
Criminal defendants have the right to be present at all material stages of trial, which
J. (Dissenting):
The court's decision to permit and even encourage the jurors informally to view evidentiary
Since that right is one that must be enforced by the appellate courts even in the absence of
the exhibits are technically available for review and inspection by the jury.
However, depending on their size and nature, the exhibits may not actually be examined by the
Instead, they may be passed around for close viewing immediately after the formalities of
In this case, for example, the record makes clear that on at least two occasions, the
Certainly, the jurors' examination of the exhibits presents an occasion for meaningful
Because I view such experimentation as inappropriate and likely to corrupt the "mode of
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