Opinion
October 2, 1986
Appeal from the Supreme Court, Queens County (Beldock, J.).
Motion for reargument granted, and, upon reargument, original determination adhered to.
The defendant, in his pro se brief, raises an argument not raised in the brief submitted by assigned counsel. He contends that reversal is necessary because the trial court, during jury deliberations, met with a juror privately, without notice to the defendant, the defendant's attorney, or the prosecutor. The record establishes that the court did, in fact, meet with a juror after having been informed by the jury foreman that that juror wished to speak to the court. The court explained to this juror that jury secrecy precluded him from discussing any aspect of the deliberations with her, but that she could, nonetheless, report to the court if any threats had been made against her. The juror stated simply that she understood. The juror made no further statement to the court and the brief interview was concluded.
We agree with the defendant that the court should not have spoken to this juror outside the presence of the attorneys for the parties (see, People v Wilson, 106 A.D.2d 146, 148-149; People v Mott, 94 A.D.2d 415, 420; People v Saccomanno, 25 A.D.2d 528; People v Oliver, 4 A.D.2d 28, 32, affd 3 N.Y.2d 684; People v Jelke, 284 App. Div. 211, 218, affd 308 N.Y. 56). However, in view of the insignificance of what was said during this interview, and in the absence of any showing of prejudice to the defendant, we conclude that the error was harmless. As improper as an ex parte communication between a trial court and a juror may be, the mere occurrence of such a communication does not warrant reversal of the judgment of conviction in the absence of any prejudice (see, Rushen v Spain, 464 U.S. 114, reh denied 465 U.S. 1055; United States v Yonn, 702 F.2d 1341, cert denied sub nom. Weeks v United States, 464 U.S. 917; United States v Bokine, 523 F.2d 767, 770; People v O'Keefe, 281 App. Div. 409, 416, affd 306 N.Y. 619, cert denied 347 U.S. 989; see also, People v De Sousa, 79 A.D.2d 712). No such prejudice is evident in the record on appeal.
Accordingly, we adhere to our original determination affirming the judgment under review. Mollen, P.J., Lazer, Brown and Eiber, JJ., concur.