People v. Smith — 59 N.Y.2d 988

Majority

p. 988

The People of the State of New York, Respondent, v Renard Smith, Appellant.

Argued June 9, 1983;

decided July 5, 1983

p. 990

APPEARANCES OF COUNSEL

Monica Drinane and William E. Hellerstein for appellant.

Robert M. Morgenthau, District Attorney (Brian E. O’Donoghue and Mark Dwyer of counsel), for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We agree with both the trial court and the Appellate Division majority that the juror’s conduct did not rise to the level of the “conscious, contrived experimentation” found to be misconduct in People v Brown ( 48 NY2d 388 , 394). Rather, the juror’s evaluation of the ability to observe the interior of an automobile through its rear window, made while walking to dinner between deliberations and again while riding in a bus with jurors to the hotel after being sequestered, is properly classified as an everyday experience and, therefore, not misconduct (see, generally, United States ex rel. Owen v McMann, 435 F2d 813 , 817-818, cert den 402 US 906 ).

The better practice is for a Trial Judge presented with evidence of such action by a juror to hold a hearing in order to ascertain exactly what transpired, rather than to rely upon attorneys’ affidavits concerning what the juror said he did (cf. People v Brown, 48 NY2d 388 , 392, supra; State v Graham, 422 So 2d 123 [La], app dsmd sub nom. Graham v Louisiana, _ US _, 103 S Ct 2419 ).

p. 991

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Simons concur.

Order affirmed in a memorandum.

Cases cited

People v. Brown 48 NY2d 388 N.Y. 1979-11-27 at 394, at 392 p. 990