Opinion
March 26, 1990
Appeal from the Supreme Court, Queens County (Marlow, J.).
Ordered that the judgment is affirmed.
While the Trial Judge and the attorneys were engaged in an in-Chambers conference, two jurors asked a police witness his age, how long he had been a police officer, and how old one had to be to become a police officer. The officer responded to the questions posed, and the jurors then discussed something between themselves. The questions were overheard by five other jurors. Upon learning of the incident, defense counsel immediately moved for a mistrial. The Trial Judge promptly questioned the witness and jurors involved and asked the jurors if what had happened would influence their deliberations. All jurors responded that it would not. Both counsel then indicated that they were satisfied with the results of the court's inquiry. The court denied the defendant's motion for a mistrial finding that no prejudice had occurred to the defendant.
On this appeal, the defendant argues that this incident constituted improper premature deliberations and that he was denied a fair trial. While the unauthorized questions by the jurors were improper (see, People v Wilds, 141 A.D.2d 395), the incident was harmless error (see, People v Crimmins, 36 N.Y.2d 230). The questions asked did not bear on any facts relevant to the defendant's guilt or innocence and the record was devoid of any evidence that the jurors engaged in premature deliberations (see, People v Townsend, 67 N.Y.2d 815, 817).
Additionally, while the prosecutor's sympathetic comments about the victim would have been better left unsaid, her actions were partially excused by the fact that they were made in response to statements made by the defense counsel (see, People v Arce, 42 N.Y.2d 179; People v Lewis, 140 A.D.2d 714). In any event, any harm was obviated by the trial court's curative instruction.
We have reviewed the defendant's sentence and do not find it to be excessive (see, People v Suitte, 90 A.D.2d 80).
Finally, we have considered the defendant's remaining contentions and find them to be either unpreserved for appellate review (CPL 470.05) or without merit. Mangano, P.J., Bracken, Lawrence and Kooper, JJ., concur.