Opinion
February 5, 1996
Appeal from the Supreme Court, Kings County (Mastro, J.).
Ordered that the judgment is affirmed.
It is well settled that "`not every misstep by a juror rises to the inherently prejudicial level at which reversal is required automatically'" (People v. Clark, 81 N.Y.2d 913, 914). "Because juror misconduct can take many forms, no ironclad rule of decision is possible. In each case the facts must be examined to determine the nature of the material placed before the jury and the likelihood that prejudice would be engendered" (People v Brown, 48 N.Y.2d 388, 394; see, People v. Testa, 61 N.Y.2d 1008, 1009).
Upon learning of discussions among the jurors during a trial recess the court, with the approval of defense counsel and the prosecutor, properly "carried out a complete inquiry of each juror and alternate individually, ascertaining the nature of the matters discussed and the extent of those discussions" as well as whether anything each juror heard affected their ability to assess the credibility of witnesses, and whether each juror had formed an opinion as to the defendant's guilt or innocence (see, People v. Castillo, 144 A.D.2d 376; People v. Pollard, 150 A.D.2d 397, 398). The jurors' responses established that they had not been prejudiced by any discussions, and had not made any premature determination as to the guilt or innocence of the defendant. As the court's assessment "is afforded great weight because of its unique position to observe" the jurors (People v Pinckney, 220 A.D.2d 539; see, People v. Rodriguez, 71 N.Y.2d 214), its determination that a mistrial was not warranted will not be disturbed.
The defendant's contention that the court's instructions regarding reasonable doubt were incorrect is unpreserved for appellate review (see, CPL 470.05; People v. Brown, 167 A.D.2d 346). In any event, while the court's initial instruction that guilt need not be proven "beyond all reasonable doubt" was error (see, People v. Ginsberg, 274 App. Div. 1007), this error was not repeated in the supplemental instruction wherein the court stated that guilt need not be established "beyond all doubt". Because the court's supplemental charge was satisfactory (see, People v. Malloy, 55 N.Y.2d 296) any prejudice that arose from the initial instruction was obviated (see, People v Cannon, 168 A.D.2d 356). It was also proper for the court to instruct the jury that a reasonable doubt was one upon which a reasonable person "would hesitate to act". This concept is contained in the Pattern Jury Instructions (see, 1 CJI[NY] 6.20) and "is firmly embedded in the accepted definition of reasonable doubt" (People v. Morgan, 199 A.D.2d 143, 144; see, People v. Alston, 211 A.D.2d 498; People v. Quinones, 123 A.D.2d 793).
The defendant's sentence was not excessive (see, People v Suitte, 90 A.D.2d 80). O'Brien, J.P., Sullivan, Copertino and Joy, JJ., concur.