Opinion
December 6, 1971
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered April 30, 1971, convicting him of criminal possession of stolen property in the first degree and criminal possession of stolen property in the third degree, upon a jury verdict, and sentencing him to an indeterminate term with a maximum of seven years upon the first degree conviction and to an unconditional discharge upon the third degree conviction. Judgment affirmed. No opinion. Latham, Shapiro and Brennan, JJ., concur; Gulotta, J., dissents and votes to remand the case to the Criminal Term for a hearing in accordance with the memorandum hereinbelow and to hold the appeal in abeyance in the interim, in which Rabin, P.J., concurs. I am of the opinion that the Trial Judge erred in refusing to examine the jury about certain prejudicial articles published during the course of the trial in two well-known New York newspapers and brought to the court's attention immediately by defense counsel. An investigation should have been conducted to determine (1) whether any jurors had seen the articles and, if so, (2) whether they were influenced against defendant by what they had read (cf. People v. Rivera, 26 N.Y.2d 304). Since this is a recent conviction and the matter is probably still fresh in the minds of the jurors, the case should be remanded for a hearing on these two questions and the appeal held in abeyance pending findings in connection therewith.