People v. Smith

59 N.Y.2d 988 (1983)

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

Court of Appeals of the State of New York.

Argued June 9, 1983.

Decided July 5, 1983.

Monica Drinane and William E. Hellerstein for appellant.

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

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER and SIMONS concur.

*990MEMORANDUM.

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 N.Y.2d 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 F.2d 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 N.Y.2d 388, 392, supra; State v Graham, 422 So 2d 123 [La], app dsmd sub nom. Graham v Louisiana, ___ US ___, 103 S Ct 2419).

Order affirmed in a memorandum.