People v. White
| Decision Date | 02 April 1981 |
| Citation | 53 N.Y.2d 721,439 N.Y.S.2d 333,421 N.E.2d 825 |
| Parties | , 421 N.E.2d 825 The PEOPLE of the State of New York, Appellant, v. Samuel WHITE, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
The order of the Appellate Division, 67 A.D.2d 571, 416 N.Y.S.2d 260 should be reversed and the case remitted to that court for a review of the facts.
Following a jury trial, defendant was convicted of having robbed a grocery store. The Appellate Division reversed the conviction "on the law" because, in its view, the trial court had abused its discretion in permitting the jurors to view the scene of the crime after they had begun their deliberations. Since both parties had consented to the postsummation viewing, the Appellate Division declined to hold that the procedure was unauthorized per se (cf. CPL 270.50). Nevertheless, the court held that a retrial was required because a minor but material change had occurred in the layout of the grocery store since the time of the robbery. Because the conditions to which the jurors were exposed at the time of their viewing were not representative of the conditions that existed when the robbery took place, the Appellate Division concluded that defendant's position had been seriously prejudiced.
Initially, we note that the Appellate Division based its reversal upon a properly preserved "question of law" and thus its order is appealable under CPL 450.90 (subd. 2, par. Although defendant ultimately consented to the jury's visit to the grocery store, he had repeatedly objected to the trial court's decision to permit the jurors to view the scene under conditions which differed materially from those that obtained at the time of the robbery. These protestations were sufficient to create a "question of law" within the meaning of CPL 470.05 (subd. 2), notwithstanding defendant's ultimate consent to the procedure (cf. People v. Le Mieux, 51 N.Y.2d 981, 435 N.Y.S.2d 710, 416 N.E.2d 1045).
It remains for us to determine, however, whether defendant's final consent to the viewing procedure constituted an effective waiver of a right to relief on the basis of any objection he might otherwise have had to the manner in which the viewing was conducted. On the basis of the present record, we conclude that an actual waiver did occur. First, it must be stressed that defendant consented to the viewing after...
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