People v. Bonaparte

• Decision Date: 29 May 1990
• Citation: 556 N.Y.S.2d 363,161 A.D.2d 774
• Parties: The PEOPLE, etc., Respondent, v. Jerome BONAPARTE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 363

556 N.Y.S.2d 363

161 A.D.2d 774

The PEOPLE, etc., Respondent, v. Jerome BONAPARTE, Appellant.

Supreme Court, Appellate Division,

Second Department.

May 29, 1990.

Philip L. Weinstein, New York City (Winston McIntosh, of counsel), for appellant.

Jerome Bonaparte, pro se.

Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Jessica Hecht and Jodi L. Mandel, of counsel), for respondent.

Before LAWRENCE, J.P., and KUNZEMAN, KOOPER and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Aiello, J.), rendered October 14, 1987, convicting him of murder in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered. The facts have been considered and determined to have been established.

Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15[5]. We are also satisfied that there is no merit to the arguments made by defendant in his supplemental pro se brief. We conclude, however, that because the court improperly delegated a judicial function to a court officer and because, in so doing, it abridged the defendant's right to be present during a critical stage of his jury trial, reversal and a new trial is mandated.

Within one-half hour of the beginning of the second day of deliberations, the jury announced it had arrived at a verdict. Defense counsel protested the failure to notify him the previous evening when the jury was to be sequestered. The Supreme Court advised that in order to avoid the delay occasioned by calling the jurors into the courtroom and sending for the attorneys, it decided to have a court officer inform them of its decision to have them sequestered.

It is the court's function, not that of the court personnel, to instruct jurors as to their duties and obligations upon sequestration (see, People v. Torres, 72 N.Y.2d 1007, 534 N.Y.S.2d 914, 531 N.E.2d 635; People v. Mercado, 154 A.D.2d 556, 546 N.Y.S.2d 396). Moreover, a defendant's presence, with counsel, is imperative whenever that presence bears a reasonably substantial relationship to the defendant's opportunity to defend against the indictment (People v. Ciaccio, 47 N.Y.2d 431, 437, 418 N.Y.S.2d 371, 391 N.E.2d 1347). This necessarily includes "all proceedings...