Opinion
March 8, 1993
Appeal from the Supreme Court, Queens County (Joy, J.).
Ordered that the judgment is affirmed.
The defendant in this case was convicted of criminal possession of a controlled substance in the fourth degree and criminal possession of a weapon in the third degree. At trial, a Long Island Rail Road (hereinafter LIRR) officer testified that the defendant was a passenger in a car stopped by him at night for a traffic infraction. The officer testified that, while approaching the vehicle on foot, he saw, with the aid of the spotlights on top of his patrol vehicle, the defendant drop a gun to the floor of the vehicle. The officer further testified that the defendant dropped drugs as he tried to escape.
During trial, the prosecutor reported that she saw two jurors "examining" an LIRR police car parked on the street during a lunch break. The trial court refused defense counsel's requests that the jurors be questioned and/or dismissed or that a mistrial be granted. On appeal, the defendant argues that he was deprived of a fair trial by the trial court's refusal to question the two jurors who the prosecutor saw examining the police car. We disagree. While the better practice for a trial court presented with evidence of possible extrajudicial investigatory action taken by a juror is to hold a hearing in order to ascertain exactly what transpired, the absence of a hearing did not require reversal under the circumstances of this case (see, People v. Smith, 59 N.Y.2d 988; People v. Crimmins, 36 N.Y.2d 230). The trial court was able to dissipate any prejudice to the defendant by giving a prompt curative instruction, followed by a corrective instruction prior to a weekend recess, and a subsequent instruction in its final charge (see, People v. Berg, 59 N.Y.2d 294; People v. Santiago, 52 N.Y.2d 865; People v Richardson, 175 A.D.2d 143; People v. Pollard, 150 A.D.2d 397). Further, the jurors did not engage in "conscious [or] contrived" conduct like that condemned in People v. Legister ( 75 N.Y.2d 832, 833; see also, People v. Smith, 59 N.Y.2d 988, supra; People v Brown, 48 N.Y.2d 388; People v. Mann, 125 A.D.2d 711; People v Cortez, 172 A.D.2d 766, affd 80 N.Y.2d 855; People v. Suraci, 137 A.D.2d 567).
In light of the defendant's prior criminal record, we cannot conclude that the sentence was excessive (see, People v. Alicea, 99 A.D.2d 815; People v. Suitte, 90 A.D.2d 80). Balletta, J.P., Rosenblatt, Ritter and Santucci, JJ., concur.