(dissenting). I would affirm the judgment appealed from.
There was no error in complying with the jury’s request to permit the jury to view the scene of the crime during deliberations as this was expressly consented to by both sides. Although CPL 270.50 authorizes the court to permit a viewing "at any time before the commencement of the summations,” this restriction like so many other restrictions in the statute can be waived, and here is was explicitly waived.
Although appellant contends that no viewing should have been allowed at all during deliberations despite the consent, it is also argued that the Judge should have given a supplemental instruction to the jury pointing out that the scene was slightly different (presumably as to physical placement of certain racks) from what it had been at the time of the crime. While I would see no harm in the Trial Judge giving such an instruction, I do not think the failure to give such an instruction was error, let alone reversible error. At the time that counsel consented to the viewing, counsel knew that the viewing was to be without a supplemental instruction. If counsel was not satisfied, all he had to do was not to consent to the viewing on those terms. Further, it is a common and very sensible practice of Trial Judges, once deliberations have begun, not to interfere with jury deliberations by volunteering further instructions to the jury, except in direct response to the jury’s request for such instructions. In the present case, the instruction that the scene might be somewhat different would in a certain sense have been a comment on the evidence volunteered during deliberations. Furthermore, the testimony that the jury had heard made it quite clear that the racks were not in their usual position at the time of the *579robbery but had been temporarily pulled out of their usual position for restocking. And it is quite plain not only that the jury heard this testimony, but that it was aware of it at the time of the inspection, for during the inspection one of the jurors moved one of the racks out.
Finally, this claim of error does not seem to me to be of sufficient importance to warrant reversing this two and one-half-year-old conviction of a crime that took place over three years ago, in a case where evidence of guilt is strong.
Kupferman, J. P., Lane and Lynch, JJ., concur with Lupiano, J.; Silverman, J., dissents in an opinion.
Judgment, Supreme Court, New York County, rendered on December 16, 1976, reversed, on the law, and the matter remanded for a new trial.