Opinion
Argued February 26, 1953
Decided March 5, 1953
Appeal from the Supreme Court, Appellate Division, Fourth Department, BODINE, J.
Albert Averbach for appellant.
Bradford F. Miller, District Attorney, for respondent.
On the appeal from the judgment of manslaughter in the first degree, we stated: "We have examined the numerous errors assigned by defendant's counsel, and find they are either without merit or without prejudice, save in one respect." ( People v. Durling, 303 N.Y. 382, 383.) That exception related to defendant's motion, made on the day of sentence, under section 465 of the Code of Criminal Procedure, for a new trial on the asserted ground of misconduct of jurors and the trial court's failure to deal properly with that application. We withheld determination of the appeal "in order that defendant may promptly renew in the Seneca County Court his motion for a new trial, upon affidavits and notice to the District Attorney, but upon the ground solely of alleged misconduct of jurors, and so that the Seneca County Court may hold a hearing on that phase of the motion and render a decision thereon." (P. 385.)
Such application has now been made, and, after a full hearing, denied. The Appellate Division has unanimously affirmed. Inasmuch as we find no abuse of discretion, we now affirm the judgment and order appealed from.
On appeal from the judgment of conviction: The judgment should be affirmed.
On appeal from the order denying a new trial: The order should be affirmed.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, DYE and FROESSEL, JJ., concur. FULD, J., concurs for affirmance of the judgment appealed from but dissents, insofar as the court affirms the order of the Appellate Division affirming the order of the trial court denying defendant's motion for a new trial under section 465 of the Code of Criminal Procedure, and votes to dismiss the appeal from said order upon the ground that — even under the peculiar circumstances of this case — this court lacks jurisdiction to entertain an appeal therefrom.
On appeal from judgment of conviction: Judgment affirmed.
On appeal from order denying new trial: Order affirmed.