On this appeal, we are required to consider whether a note written by a juror and delivered to a court officer for transmittal to the juror’s employer was conduct (or possible misconduct) requiring inquiry or other intervention by the Trial Judge. On this record, I am led to conclude that the court committed no error in declining to pursue the matter after the jury had retired.
At 2:00 p.m. on the final day of trial, at the prosecutor’s request, the Judge delivered to the jury a supplemental charge on acting in concert, emphasizing that a finding of criminality on that basis would have to be made "beyond a reasonable doubt”. During the course of this six-minute supplemental instruction, one juror was observed passing a note to a court officer, which the officer later told the court "was for his [i.e., the juror’s] job.” After the alternates were dismissed and the regular jurors were excused to commence deliberations, the note was read in court, at defense counsel’s request. It contained the juror’s name, his apparent place of employment (Broadway Video) and a telephone number, and referred to a "[scheduling problem”: "It’s beyond a reasonable *8doubt that M[—] R[—] will make it to work tonight. Thanks.” The trial court denied defense counsel’s request that this juror be questioned, stating that the note, which "doesn’t make any sense”, indicated no predisposition toward a verdict in either direction. Be that as it may, the jury returned at 5:15 p.m. with a verdict of guilty on both counts of the indictment.
Any juror who, in the course of a trial, is found to be "grossly unqualified to serve in the case or has engaged in misconduct of a substantial nature” must be discharged (CPL 270.35). In my view, nothing in this note, addressed entirely to an outsider, rose to the level of "misconduct” of any kind, much less misconduct of a substantial nature, to trigger the need for the "probing and tactful inquiry” called for in People v Buford (69 NY2d 290, 299).
The note was written not only after all the evidence was in and both sides had rested and summed up, but also after the main charge (27 pages in the record) was fully delivered, and a five-page supplemental charge (at the prosecutor’s request) was either in progress or completed. Nothing in the note suggested that any premature deliberation with any other juror had occurred. The "sense” of the note, as I read it, is that the case appeared simple to this juror and susceptible to a speedy verdict. It is ambiguous insofar as what that verdict would be. The note may hint at a state of mind inclined toward the prosecution, but I would suggest that the mental processes of an individual juror’s mind on the brink of deliberation, standing alone, are not a subject fit for judicial inquiry. To test this, one need only ask whether the trial court should undertake to inquire of this or any other juror whether, and then why, he or she seemed to be favoring the defendant. Clearly, that would be error (see, People v Garcia, 153 AD2d 951, 953, lv denied 75 NY2d 919). This particular juror was insulated from any such judicial scalpel, however "tactfully” applied, for the same reason Lord Bacon admired the statecraft of the young Elizabeth I: "Her Majesty not liking to make windows into men’s hearts and secret thoughts, except the abundance of them did overflow into overt and express acts or affirmations, tempered her law so as it restraineth only manifest disobedience”.1 While that idea was undoubtedly a novelty in Tudor England, especially to some members of Her Majesty’s Star Chamber, it has won wide acceptance in the *9common law today. We are now content to accept manifest behavior as a reliable indicator of mental state, with the proviso that any such inference is permissive and not mandatory (People v Getch, 50 NY2d 456; People v Green, 50 NY2d 891, cert denied 449 US 957).
Since there was no manifest disobedience of any direction of the court or, for that matter, any other legal standard, the omission of the court to conduct an inquiry did not result in reversible error. The prerequisite for such disqualification is a finding that the juror prematurely (i.e., during the course of the trial testimony or before the charge on the applicable law) possesses a state of mind which would prevent the rendering of an impartial verdict (see, People v Buford, supra).
My fundamental difficulty with the majority position is not that there is anything pernicious about a hearing per se, but that when it comes to delineating the possible scope of the inquiry, each topic suggested would inevitably lead to nothing more than the inner thoughts of the juror. My point is simply that he was entitled to have those thoughts at that stage of the trial when he wrote the note, and then to express them to his fellow jurors the minute he crossed the threshold of the jury room and deliberations commenced.
In People v Estrada (191 AD2d 286, lv denied 81 NY2d 1013), we held that the conduct of a juror in greeting a prosecution witness and advising the prosecutor that the trial exhibits were incorrectly numbered was "innocuous and did not require a hearing to determine whether the juror was involved in 'misconduct of a substantial nature’ within the meaning of CPL 270.35”. I believe the juror’s conduct here was even more innocuous, because it was not disclosed to anyone but himself and the court officer chosen by the juror as his messenger. Even a remark that the trial " 'won’t take long’ ” does not necessarily demonstrate that the defendant is being deprived of a fair and impartial assessment of the evidence (People v Hauver, 129 AD2d 889, 891).
I do not mean to suggest that the trial court’s power and duty to inquire with respect to alleged juror misconduct was curtailed in any way simply because the trial had reached the moment for jury deliberations to commence. That power to confront misconduct when it occurs in the course of deliberations clearly exists (People v Rodriguez, 71 NY2d 214; cf., People v Almodovar, 196 AD2d 718, lv denied 82 NY2d 890, cert denied — US —, 114 S Ct 2143). Indeed, the court’s *10contempt power, traditionally limited to acts committed "in the presence of the court”, has been held to reach misconduct involving a juror which was committed even beyond the eyes and ears of the Judge.2
To conclude, despite this juror’s somewhat flippant attitude and the trial court’s mystification as to the import of the note, the latter’s decision not to conduct the inquiry as requested was not only a proper exercise of discretion (see, People v Aksoy, 191 AD2d 271, 273, affd 84 NY2d 912), but also a sound conclusion as to the proper limits of its power.
I respectfully dissent, and would affirm the judgment of conviction.
Asch, Nardelli and Tom, JJ., concur with Mazzarelli, J.; Wallace, J. P., dissents in a separate opinion.
Judgment, Supreme Court, New York County, rendered October 29, 1992, reversed, on the law and the facts, and the matter remanded for a new trial.
. Johnson, Elizabeth I: A Biography, at 88 (Holt Rinehart and Winston, New York, 1974), citing Spedding, Life and Letters of Bacon (I:97-98).
. In a classic decision shortly before his elevation to the Court of Appeals, Justice Albert Conway held that illicit intimacy between a female juror and the officer in charge of the jury was regarded as having constructively occurred in the presence of the court (People v Higgins, 173 Misc 96).