People v. Litwa

—Appeal from the judgment, Supreme Court, Bronx County (Fred Eggert, J.), rendered September 6, 1990, convicting defendant, after a jury trial, of arson in the third degree, and sentencing him to a prison term of from 4 to 12 years, is held in abeyance, and the matter is remitted for a reconstruction hearing in accordance with the following. It must first be noted that defense counsel objected and informed the Judge that the deliberating and alternate jurors were communicating in the courtroom, and were, in fact, purportedly having conversations. As a result, the mandate of People v Agramonte (87 NY2d 765) is satisfied and the issue is preserved. We do not read Agramonte, as the dissent does, to impose upon defendant an obligation to seek further relief in the form of "a hearing or other amplification of the record”, as all that Agramonte requires is a timely objection, which was made herein. The court deferred defense counsel’s request that the alternate jurors be excused until after lunch was delivered. In the interim, however, the jury sent a note requesting further instructions and a readback of testimony. After this request was complied with, the jury, while still in the courtroom, sent another note requesting to hear further testimony. When the court reporter retrieved her notes, defense counsel advised the court that she had seen the deliberating jurors and the alternate jurors communicating in the courtroom. The court advised the jurors not to speak further. Defense counsel, however, asserted that it could not be ascertained whether the last note received from the jury, which was written by the forelady, was upon the request of solely the deliberating jurors or whether it was sent at the request of the alternates as well. The Judge, however, found that there had been no participation by the alternates since he had seen the forelady write the note. After the readback, the jury returned to deliberate and the alternates were excused. CPL 310.10 prohibits anyone, including alternate jurors, from communicating with deliberating jurors. Pursuant to CPL 270.30, after the jury has retired to deliberate, the court must either (1) with the consent of the defendant and the People, discharge the alternate jurors or (2) direct the alternate jurors not to discuss the case and must further direct that they be kept separate and apart form the regular jurors. The rule is to be strictly construed and reversal is warranted when the "separate and apart” rule is violated (see, People v Santana, 639 163 AD2d 495, 496-497, affd 78 NY2d 1027; People v Moore, 220 AD2d 285). However, in the instant case, all the jurors were in court under the supervision of the Judge and the record is unclear not only as to the nature of the communication but as to whether or not such communication actually took place. Accordingly, the matter is remitted to the trial court for a reconstruction hearing to determine the issue (People v Moore, supra). Concur — Rosenberger, J. P., Wallach and Tom, JJ.