People v. Harper

47 N.Y.2d 857 (1979)

The People of the State of New York, Respondent, v. Allen Harper, Appellant.

Court of Appeals of the State of New York.

Argued March 30, 1979.

Decided June 12, 1979.

Barbara B. Butler and William E. Hellerstein for appellant.

Robert M. Morgenthau, District Attorney (Richard Hamburger and Jerrold L. Neugarten of counsel), for respondent.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER and FUCHSBERG concur.

MEMORANDUM.

The order appealed from should be affirmed. We find no *858 merit to defendant's contention that he was denied due process of law when the trial court denied his motion for a mistrial made upon the ground that he had been unduly prejudiced when two jurors inadvertently viewed him in handcuffs while returning from lunch recess. The brief and, without question, inadvertent viewing of defendant by these jurors was, by itself, insufficient to deny defendant a fair trial (compare Dupont v Hall, 555 F.2d 15, with People v Roman, 35 N.Y.2d 978). Furthermore, defense counsel declined an express invitation by the Trial Judge to deliver a curative instruction, and did not request the substitution of alternate jurors or an examination into the effect of the encounter.

We also reject defendant's claim that his conviction of the fifth count of the indictment, accusing him of burglary in the first degree, cannot be sustained because the People failed to prove beyond a reasonable doubt that defendant and his accomplices caused physical injury to their victim while "effecting entry" into his dwelling (see Penal Law, § 140.30, subd 2). Our examination of the trial record persuades us that the People did indeed meet their burden of proof on this point.

Order affirmed in a memorandum.