Opinion
Argued June 9, 1983
Decided July 5, 1983
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, DENNIS EDWARDS, JR., J.
Monica Drinane and William E. Hellerstein for appellant.
Robert M. Morgenthau, District Attorney ( Brian E. O'Donoghue and Mark Dwyer of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
We agree with both the trial court and the Appellate Division majority that the juror's conduct did not rise to the level of the "conscious, contrived experimentation" found to be misconduct in People v Brown ( 48 N.Y.2d 388, 394). Rather, the juror's evaluation of the ability to observe the interior of an automobile through its rear window, made while walking to dinner between deliberations and again while riding in a bus with jurors to the hotel after being sequestered, is properly classified as an everyday experience and, therefore, not misconduct (see, generally, United States ex rel. Owen v McMann, 435 F.2d 813, 817-818, cert den 402 U.S. 906).
The better practice is for a Trial Judge presented with evidence of such action by a juror to hold a hearing in order to ascertain exactly what transpired, rather than to rely upon attorneys' affidavits concerning what the juror said he did (cf. People v Brown, 48 N.Y.2d 388, 392, supra; State v Graham, 422 So.2d 123 [La], app dsmd sub nom. Graham v Louisiana, ___ US ___, 103 S Ct 2419).
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER and SIMONS concur.
Order affirmed in a memorandum.