People v. Brown

Appeal from a judgment of the County Court, Albany County, entered on a jury verdict convicting appellant of the crime of assault in the second degree. After the jury rendered its verdict the defense moved for a mistrial on the ground that one of the jurors during the period of deliberation had been observed in the courtroom having a telephone conversation in contravention of section 421 of the Code of Criminal Procedure. The trial court, after conceding that such a conversation had taken place, denied the motion on the basis of its own investigation of the event. The appellant was given no opportunity to participate in the trial court’s investigation or to question the jury member who made the call or the Deputy Sheriff who had permitted it. *652Due process requires that appellant be afforded such an. opportunity and not be expected to accept the results of the court’s private investigation. Accordingly, a decision must be withheld and the matter remanded to the County Court, Albany County, with direction to conduct a full hearing on the incident and render a decision based thereon which decision may be brought back to this court for review if the litigants so desire. Determination of appeal withheld and case remitted to the County Court, Albany County, for further proceedings not inconsistent with the decision herein. Herlihy, P. J., Reynolds, Greenblott, Sweeney and Simons, JJ., concur.