People v. Litwa

Nardelli and Williams, JJ.,

dissent in a memorandum by Nardelli, J., as follows: The defendant contends that the trial court’s failure to separate the alternate jurors from the deliberating jurors resulted in an unauthorized courtroom communication between them in violation of CPL 270.30 and 310.10 that tainted the deliberations and thereby deprived him of a fair trial.

The jury was sent to deliberate and the court said it would retain the alternates "for a while”, since "their lunch will be coming in” and the defendant might "have a change of heart” and consent to replacing a deliberating…