(dissenting in part). In my opinion, the instant matter should be remanded for a hearing, and the appeal held in abeyance pending the outcome thereof.
The defendant was convicted, following a jury trial, of criminal possession of a weapon in the third degree as the *362result of an incident which took place on the evening of September 19, 1978. On that date, defendant was arrested after four police officers, on patrol in an unmarked police car, observed him sitting in the back seat of a taxicab holding a .32 caliber revolver. It is defendant’s contention on this appeal that the verdict should be set aside on the ground of juror misconduct. At the trial, a major issue was whether the officers could see into the vehicle in which defendant was riding. One of the jurors, during a dinner break in the midst of the jury’s deliberations and again when the jury had been sequestered for the night, conducted an experiment to test the validity of the officers’ observation. On the walk to the restaurant and later when he was being transported by bus to the hotel, the juror in question, in an attempt to determine if the police officers were, in fact, able to perceive that which they testified about, looked into the rear windows of automobiles. The following morning, this juror and another, both of whom had previously favored acquittal, changed their votes to conviction. However, there is no assertion that the second juror’s decision was influenced by the test. After the verdict had been announced, the juror described his experiment in a conversation with the prosecutor and defense counsel.
The Trial Judge, in declining to either set aside the verdict or to conduct a hearing in connection with the claim of juror misconduct, ruled that the juror was “simply drawing upon an everyday situation to verify the testimony of the police officer witnesses.” According to the defendant, the court committed reversible error since the juror’s experiment deprived him of an impartial jury and of his right to confrontation by making the juror an unsworn witness against him.
In People v Brown (48 NY2d 388), the Court of Appeals reversed the conviction of the defendant therein after 'one of the jurors had performed a test of the visibility afforded by her own Volkswagen van. The juror’s van, the court noted, was of a different design from that of the General Motors van in which the police had been riding during the occurrence of events leading to the defendant’s apprehension. In addition, she communicated the results of her *363experiment, allegedly supporting the testimony of one of the police officers, to the rest of the jury panel. In that case, the trial court had held a hearing on the motion to set aside the verdict and concluded that the test had not been conducted at the scene of the incident and, moreover, that there was no evidence that the jury had been affected by an inherently prejudicial outside influence. However, the Court of Appeals declared (p 393) that improper influence upon a jury “embraces not merely corrupt attempts to affect the jury process, but even well-intentioned jury conduct which tends to put the jury in possession of evidence. not introduced at trial”. The experiment performed by the jury in the case before it could not, the court stated, be characterized as an application of everyday experience, demonstrated by the fact that she felt compelled to conduct the exercise at all. Further, the court continued, the test was material to a point at issue in the trial, and, finally, the juror’s conduct created a substantial risk of prejudice to the rights of the defendant.
Under the standards established in People v Brown (supra), the defendant in the instant case is clearly entitled to a hearing to ascertain whether the juror’s experiment involved an “application of everyday experience” and whether there was a substantial risk of prejudice. In Brown, the court reversed the conviction despite the trial court’s finding that there was no evidence that the rest of the jury had been affected by the juror’s experiment. Therefore, it appears that if even only one juror has been influenced by an unauthorized test, substantial risk of prejudice may still be present. It is undisputed that in the instant situation, the juror’s observations were material to an issue raised at trial.
The fact pattern in People v Brown (supra) is sufficiently analogous to the one under consideration here to require us to follow its precepts. At the very least, the defendant is entitled to a hearing.
Kupferman, J. P., and Markewich, J., concur with Sullivan, J.; Milonas, J., dissents in part in an opinion.
Judgment, Supreme Court, New York County, rendered on June 13, 1979, affirmed.