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PEOPLE v. KELLY

5 N.Y.3d 116 (2005)

832 N.E.2d 1179

799 N.Y.S.2d 763

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THOMAS KELLY, Appellant.

Court of Appeals of the State of New York.

Decided June 29, 2005.

Attorney(s) appearing for the Case

Center for Appellate Litigation, New York City (Abigail Everett and Robert S. Dean of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York City (Eleanor J. Ostrow and Hilary Hassler of counsel), for respondent.

Before: Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, GRAFFEO, READ and R.S. SMITH concur.

OPINION OF THE COURT

ROSENBLATT, J.

While alone with the jury during deliberations, a court officer conducted an unauthorized demonstration on the weapon involved in a murder trial. Defendant argues that this amounted to a "mode of proceedings" error that can be raised on appeal, even though he did not preserve it. We disagree and affirm the Appellate Division order sustaining the conviction.

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