Appeal from judgments of the Justice Court of the Village of Haverstraw, Rockland County (Ronald V. De Caprio, J.), rendered May 18, 2011. The judgments convicted defendant, upon jury verdicts, of attempted sexual misconduct and unlawful imprisonment in the second degree, respectively.

ORDERED that the judgments of conviction are affirmed.

Defendant was charged in separate accusatory instruments with attempted sexual misconduct (Penal Law §§ 110.00, 130.20 [1]), unlawful imprisonment in the second degree (Penal Law § 135.05) and two counts of endangering the welfare of a child (Penal Law § 260.10 [1]). Following a jury trial, defendant was found guilty of attempted sexual misconduct and unlawful imprisonment in the second degree.

Defendant's challenges to the legal sufficiency of the evidence are not preserved for appellate review because defendant failed to renew his motion for a trial order of dismissal at the close of all the evidence (see CPL 470.05 [2]; People v Hines, 97 NY2d 56, 62 [2001]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish defendant's guilt of [*2]attempted sexual misconduct and unlawful imprisonment in the second degree beyond a reasonable doubt.

In the trial court, defendant sought to have a prospective juror, a police officer, excused for cause on the ground that police officers generally cannot be impartial. The Justice Court denied defense counsel's request. Defendant then exercised a peremptory challenge to remove this prospective juror and thereafter exhausted his allotment of peremptory challenges prior to completion of jury selection (see CPL 270.20 [2]; People v Lynch, 95 NY2d 243, 251-252 [2001]; People v MacFarlane, 87 AD3d 700, 702 [2011]). On appeal, defendant contends that the Justice Court erred in failing to grant his request to excuse the prospective juror for cause because the prospective juror's particular response to defense counsel's question regarding whether he could be fair and impartial was equivocal. Since this specific ground for challenging the prospective juror for cause had not been raised in the trial court, the issue has not been preserved for appellate review (see People v Horton, 79 AD3d 1614, 1615 [2010]; People v Crane, 35 Misc 3d 132[A], 2012 NY Slip Op 50695[U] [App Term, 9th & 10th Jud Dists 2012]).

Prior to jury deliberations, the Justice Court advised the jury that they would be conducting their deliberations in the courtroom, that court officers would be posted at "both ends" and that the general public could not be refused admittance to the courtroom. In addition, the court advised the jury that they should not allow such intrusions to interrupt their deliberations. Defendant contends, for the first time on appeal, that the Justice Court thereby violated the provisions of CPL 310.10. Although CPL 310.10 requires that jury deliberations must be conducted "outside the courtroom," this issue has not been preserved for appellate review since defendant did not raise this specific objection after the Justice Court announced the site of the jury's deliberations (see CPL 470.05 [2]). Violations of CPL 310.10 have been held not to fall within the narrow category of errors which affect "the organization of the court or the mode of proceedings prescribed by law" and which need not be preserved to present a question of law reviewable on appeal (People v Agramonte, 87 NY2d 765, 769 [1996]; see generally People v Patterson, 39 NY2d 288, 295 [1976]).

Nevertheless, the right to a jury trial is fundamental to our scheme of justice and essential to a fair trial (see People v Rivera, 15 NY3d 207, 211 [2010]). "At the heart of this right is the need to ensure that jury deliberations are conducted in secret, and not influenced or intruded upon by outside factors" (id.). "We must bear in mind that the confidentiality of the thought process of jurors, their privileged exchange of views, and the freedom to be candid in their deliberations are the soul of the jury system" (U.S. v Antar, 38 F3d 1348, 1367 [3d Cir 1994, Rosen, J. concurring]). While defendant claims that jury deliberations were not conducted in secret, an error which is so fundamental that the entire trial would be irreparably tainted, upon the record presented, we are unable to determine whether the Justice Court had infringed upon the secrecy and independence of the jury's deliberations. It is not clear whether the court officers were inside the courtroom, whether anyone from the public had actually gained access to the courtroom while the jury was deliberating, and whether anyone had influenced or intruded upon the jury's deliberations. Thus, defendant's claim cannot be resolved without reference to a matter outside the record.

Accordingly, the judgments of conviction are affirmed. [*3]

Nicolai, P.J., Iannacci and Tolbert, JJ., concur.
Decision Date: June 04, 2013