People v. Smithwick

— Order, Supreme Court, Bronx County (Rosenberg, J.), entered May 22, 1981, which set aside a jury verdict of conviction of murder, second degree, and criminal possession of a weapon, second degree, reversed, on the law, the verdict reinstated, and the case remanded to Supreme Court, Bronx County, for imposition of sentence. The evidence against defendant-respondent was overwhelming and sufficient to justify the verdict. After the jury retired, it requested the exhibits, which were delivered, inclusive of a photograph of the victim of a shooting lying dead in an elevator. The packet of exhibits sent to the jury included, in error, three other black-and-white photos of the same scene. Mistrial was requested, and the court conducted an immediate inquiry of the foreman. It was ascertained that the photos had not been examined by the jury and that the only discussion concerning them was centered on the circumstances of erroneous delivery. Before resuming deliberation the next morning, the jury was appropriately instructed to consider nothing not received in evidence by the court. We are of the opinion that the described error played no part in the jury’s determination of guilt. We have examined the pictures and, considering them against the background of evidence of the manner of the homicide, we do not view them as unduly gruesome and they are certainly not inflammatory. In the circumstances the trial court should not have set the verdict aside. (See People v Crimmins, 36 NY2d 230.) Concur — Murphy, P. J., Markewich, Silverman, Fein and Milonas, JJ.