Opinion
July 29, 1974
Judgment of the Extraordinary Special and Trial Term, Supreme Court, Queens County, rendered March 18, 1974, affirmed. During the course of the trial, the trial court repeatedly, and quite properly, reminded the jury of its duty not to discuss the case or read anything about it. On the fourth day of trial, defense counsel pointed to two small clippings in the Long Island Press reporting on the trial, and requested the court to poll the jury again to see if anyone had read either article. The Assistant Special Prosecutor contended that the two articles contained only a brief summary of the court testimony and could not prejudice defendant. Defense counsel persisted in asking for a poll of the jury. The court consented to defense counsel's request but insisted, over objection, that he would tell the jury that it was being polled at his request. The court thereafter so informed the jury. If the defendant was not entitled to have the jury polled, the court should have denied his request. If he was entitled to have the jury polled the court should not have placed any possible onus for the request on the defense. However, in the entire setting of this case we deem the error harmless (CPL 470.05, subd. 1). The case is remitted to the Extraordinary Special and Trial Term, Supreme Court, Queens County, for proceedings to direct appellant to surrender himself to said court in order that execution of the judgment be commenced or resumed (CPL 460.50, subd. 5). Hopkins, Acting P.J., Latham, Shapiro, Christ and Brennan, JJ., concur.