| N.Y. App. Div. | Nov 19, 1945
Appeal by defendant from a judgment of the County Court, Richmond County, entered on the verdict of a jury, convicting him of a violation of section 1308 of the Penal Law (withholding and aiding in withholding stolen property), on which he was sentenced to imprisonment for not less than two nor more than four years. Judgment reversed on the law and a new trial ordered. The court erred in respect of the incident at folios 1191-1198, in the course of which, it, in effect, injected itself into the deliberations of the jury. The message referred to, received from the jury, should have been made known to counsel and made part of the record, and, if it required an answer or statement to the jury, that answer or statement should have been given, and nothing more. There was also error in allowing the jurors to make use of telephone facilities while the case was under consideration by them. If the need for such communications was imperative, the message or messages should have been transmitted through an officer of the court. The court also erred in its charge in respect of the effect of the character testimony in stating the rule too narrowly. Other claims of error need not be passed upon as it may be that on a retrial there will be no recurrence of the incidents upon which they are based. Close, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur.