
    The People of the State of New York, Respondent, v. Fred De Lucia and Salvator Montella, Appellants.
    Argued February 9, 1965;
    decided March 18, 1965.
    
      William Sonenshine for appellants.
    I. The trial court erred in denying appellants’ motion to set aside the verdict. The jurors’ unauthorized view of the premises prevented appellants from receiving a fair and lawful trial. (People v. Eastwood, 3 Parker Cr. Rep. 25, 14 N. Y. 562; People v. Tyrrell, 36 Hun 642; People v. Pauley, 281 App. Div. 223; People v. Kraus, 147 Misc. 906; People v. Johnson, 110 N. Y. 134; People v. Gallo, 149 N. Y. 106; People v. Leonti, 262 N. Y. 256; People v. Groom, 174 Misc. 250.) II. The trial court committed prejudicial error as to both appellants in allowing the arresting officer to testify as to prior knowledge of appellant De Lucia. (People v. Huff, 5 A D 2d 795.) III. The evidence as to appellant De Lucia was insufficient, as a matter of law, to warrant a conviction upon either count of the indictment. (Direct Sales Co. v. United States, 319 U. S. 703; People v. Weiss, 290 N. Y. 160; People v. Woltering, 275 N. Y. 51; People v. Fitzgerald, 156 N. Y. 253; People v. Millet, 275 App. Div. 1060; People v. Birnbaum, 208 App. Div. 476; People v. Andreacchi, 221 App. Div. 136; People v. Di Maggio, 221 App. Div. 17.)
    
      Frank D. O’Connor, District Attorney (Harvey B. Ehrlich of counsel), for respondent.
    I. A motion for a new trial was properly denied. (McDonald v. Pless, 238 U. S. 264; Payne v. Burke, 236 App. Div. 527; People v. Sprague, 217 N. Y. 373; Clum v. Smith, 5 Hill 560; Dalrymple v. Williams, 63 N. Y. 361; Williams v. Montgomery, 60 N. Y. 648; Mitchell v. Carter, 14 Hun 448; Dean v. Mayor of City of N. Y., 29 App. Div. 350.) II. The visit to the scene, assuming it did occur, was not prejudicial to defendants. (People v. Kraus, 147 Misc. 906; People v. Klein, 213 App. Div. 66; People v. Bishop, 66 App. Div. 415; People v. Gallo, 149 N. Y. 106; People v. Fish, 125 N. Y. 136; People v. Johnson, 110 N. Y. 134; People v. Bush, 68 Cal. 623; People v. Thorn, 156 N. Y. 286.) III. No reversible error was committed with respect to the arresting officer’s testimony on identification. (People v. Huff, 5 A D 2d 795.) IV. The evidence was sufficient, as a matter of law, to warrant the conviction of De Lucia on both counts of the indictment. (Direct Sales Co. v. United States, 319 U. S. 703.)
   Dye, J.

In this joint appeal by permission, the appellants contend that the affirmance in the court below of the trial court’s order denying their motion to set aside the verdict and for a new trial amounted to reversible error. The motion was based on an affidavit by defendants’ trial counsel in which he referred to statements allegedly made to him by certain of the jurors shortly after the verdict had been rendered to the effect that they had viewed the premises where the crime was allegedly committed for the purpose of more easily understanding the evidence. There is no allegation that the jurors involved met or spoke with anyone except each other. The premises in question, at 120-20 Queens Boulevard in the Borough of Queens, are across the street and about one block away from the courthouse where the trial was held. It has long been familiar law that jurors may not impeach their own duly rendered verdict by statements or testimony averring their own misconduct within or without the juryroom; much less can they do so by statements presented in the form of hearsay affidavits (People v. Sprague, 217 N. Y. 373; Dalrymple v. Williams, 63 N. Y. 361; Fisch, New York Evidence, § 305; Richardson, Evidence [8th ed.], § 423). The rule is founded on sound public policy (Payne v. Burke, 236 App. Div. 527) which the Federal courts have applied to preclude a juror from testifying as to his own misconduct (McDonald v. Pless, 238 U. S. 264). Even though an unauthorized view of such premises is improper it is not, without more, such an impropriety as to require the granting of a new trial (People v. Johnson, 110 N. Y. 134; People v. Klein, 213 App. Div. 66; see 58 ALR 2d 1147). Absent any competent proof that the defendants were prejudiced in a substantial right affecting the verdict, the motion was properly denied (Code Crim. Pro., § 465; cf. People v. Kraus, 147 Misc. 906).

Other assigned errors need not detain us. We are satisfied that the proof adduced was sufficient as matter of law to support the judgment of conviction of each defendant on both counts of the indictment. Nor do we find that any error was committed with respect to the arresting officer’s testimony on identification from which it might be inferred that the defendant De Lucia had a prior criminal record.

The judgments of conviction should be affirmed.

Chief Judge Desmond (dissenting).

The catch phrase “ jurors may not impeach their verdict” does not dispose of the proof that these jurors, depriving defendants of a basic protective right, went on their own to the crime scene, investigated there to check on the officers’ testimony and reported back to their fellow members of the jury, all without the knowledge of court or counsel. The rule prohibiting self-impeachment by jurors is stretched too far and in the wrong direction when it is used to validate such a transgression of fundamental fair trial rules.

The rule has been so applied on occasion in some lower courts (Clum v. Smith, 5 Hill 560; Sindle v. 761 Ninth Ave. Corp., 127 N. Y. S. 2d 258, affd. 283 App. Div. 939; Tartacower v. New York City Tr. Auth., 9 Misc 2d 606; also perhaps in Haight v. City of Elmira, 42 App. Div. 391, 395). There is no doubt, however, that the rule and its purposes primarily and reasonably relate to affidavits or statements by jurors describing juryroom deliberations and methods of arriving at verdicts and error or misconduct or mistake in doing so (Dalrymple v. Williams, 63 N. Y. 361, 363; Slater v. United Traction Co., 172 App. Div. 404, 405; Stein v. New York, 346 U. S. 156, 178). As Wigmore puts it (8 Wigmore, Evidence [McNaughton rev.], § 2349), the effort is to protect against the jurors being questioned after verdict as to their methods of decision or their motives, beliefs, intention or understandings. Wigmore points out (see §§ 2353-2354) that it is anomalous that in most States while the affidavits of jurors cannot be used to go behind the verdict itself, nonetheless an illegal view by jurors is a ground for setting aside a verdict (see Code Crim. Pro., § 465) if the fact be established by someone other than a juror. There is an interesting opinion by Justice Breniíait in State v. Kociolek (20 N. J. 92, 98-100) in which he reminds us that the early common law had none of these prohibitions and that when the rule against impeachment was adopted in England it expressed only a policy against post-trial questioning of jurors as to how they arrived at their verdict. As Justice Bbeiwak shows, this policy does not reasonably apply to proof that jurors without authority went out and procured illegal evidence on which they acted.

Without destroying the rule where it properly applies we should hold that it does not apply to a situation like this where the investigation is not as to what happened in the juryroom or why, but as to a fact (illegal view) which has always been considered to be a strong ground for setting aside a verdict (see Code Crim. Pro., § 465, supra; People v. Gallo, 149 N. Y. 106, 114 et seq.).

I would reverse and send the case back to the Trial Judge to hold a hearing to determine whether a new trial should be granted on proof that certain jurors visited and inspected the scene of the alleged crime.

Judges Yak Yoorhis, Scileppi and Bergak concur with Judge Dye; Chief Judge Desmokd dissents in an opinion in which Judges Fuld and Burke concur.

Judgments affirmed.  