23 Jones Street Associates v. Keebler-Beretta, KEEBLER-BERETT

• Decision Date: 16 June 1998
• Docket Number: KEEBLER-BERETT,R
• Parties: , 1998 N.Y. Slip Op. 98,405 23 JONES STREET ASSOCIATES, Petitioner, v. Judithespondent.
• Court: New York City Court

Page 802

676 N.Y.S.2d 802

177 Misc.2d 600, 1998 N.Y. Slip Op. 98,405

23 JONES STREET ASSOCIATES, Petitioner, v. Judith KEEBLER-BERETTA, Respondent.

Civil Court of the City of New York New York County.

June 16, 1998.

Borah, Goldstein, Altschuler & Schwartz, P.C., New York City (Bradley Silverbush, of counsel), for petitioner.

Joseph S. Lobenthal, New York City, and Robert Grimble, P.C., New York City, for respondent.

SHIRLEY WERNER KORNREICH, Judge.

This is a residential, summary holdover proceeding in which petitioner seeks to recover a rent-controlled apartment, renting for $56.60 per month. The tenant of that apartment has died, and respondent alleges that she was the wife of the deceased tenant, had lived with him in the apartment since the inception of their April 2, 1992 marriage and succeeded to the apartment upon his death in December, 1995. The issue was tried by jury before me. The jury found that respondent had established, by a preponderance of the credible evidence, that she had resided in the apartment as her primary residence from the inception of her marriage to the tenant until his death. Petitioner, then, moved, pursuant to CPLR 4404(a): 1) for a judgment notwithstanding the verdict; 2) to set the verdict aside as against the weight of the evidence; 3) to set the verdict aside due to an error in the Court's charge; and 4) to set aside the verdict due to juror misconduct in that an attorney who sat on the jury improperly and wrongly informed the panel that as a legal principle, there is a presumption that spouses share a common residence, that the burden, therefore, was upon the landlord to prove otherwise and that if the jury could not decide the issue, they were to rule in favor of the tenant. Pet. Aff., para. 34.

By written opinion, the Court denied petitioner's motion for a judgment notwithstanding the verdict and to set the verdict aside due to an alleged error in the Court's instruction. The Court, however, directed that a hearing be held in regard to the alleged juror misconduct. Petitioner's motion to set the verdict aside as against the weight of the evidence was held in abeyance pending the outcome of the hearing.

Fearful of juror harassment and tampering, the chilling of frank jury deliberation and verdict instability, our courts have long held that a juror may not impeach his own verdict. Mattox v. U.S., 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892); McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915); Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 460, 492 N.Y.S.2d 584, 482 N.E.2d 63 (1985); Alford v. Sventek, 53 N.Y.2d 743, 744, 439 N.Y.S.2d 339, 421 N.E.2d 831 (1981); People v. De Lucia, 20 N.Y.2d 275, 277-279, 282 N.Y.S.2d 526, 229 N.E.2d 211 (1967). The one exception to this rule occurs when deliberations are affected by matter extraneous to the record. Tanner v. U.S., 483 U.S. 107, 117, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987); Mattox v. U.S., id.; Alford v. Sventek, id.; People. v. Brown, 48 N.Y.2d 388, 393, 423 N.Y.S.2d 461, 399 N.E.2d 51 (1979); People v. De Lucia, id. This exception is allowed because such outside matter impugns the right to confrontation, is inherently prejudicial ¹ and is objective and easily proved without invading the mental processes of the jurors. Mattox v. U.S., id.; People v. De Lucia, id. at 278-9, 282 N.Y.S.2d 526, 229 N.E.2d 211.

In directing a hearing on the issue of juror misconduct, this Court determined that if, in fact, the one attorney on the instant jury instructed the remaining jurors on the law, such instruction would be an "outside influence." ² Although the Court was unable to find any case directly on point, there is an abundance of case law finding impeachable a jury's use of information outside the record to define a legal term. See Fitzgibbons v. N.Y.S. Univ. Construc. Fund, 177 A.D.2d 1033, 578 N.Y.S.2d 317 (4th Dept.1991)(new trial ordered where juror who had experience with workers' compensation told other jurors of benefits plaintiff would receive from workers' compensation and persuaded others of plaintiff's eligibility for benefits; court found juror had injected extra-judicial facts into record and had improperly introduced law, other than that charged by judge, into case); Maslinski v. Brunswick Hosp. Center, Inc., 118 A.D.2d 834, 500 N.Y.S.2d 318 (2d Dept.1986)(verdict set aside after hearing, where juror copied definition of malpractice from medical dictionary and read it to other jurors during deliberation); U.S. v. Williams-Davis, 90 F.3d 490(D.C.Cir.1996), cert. denied --- U.S. ----, 117 S.Ct. 986, 136 L.Ed.2d 867(1997)(forewoman's use of dictionary to define "enterprise" in RICO trial was misconduct but was found not to be prejudicial); U.S. v. Gillespie, 61 F.3d 457 (6th Cir.), rehearing denied (1995)(use of dictionary to define "reasonable" was error); U.S. v. Estrada, 45 F.3d 1215 (8th Cir.)cert. granted, judgment vacated on other grds. 516 U.S. 1023, 116 S.Ct. 664, 133 L.Ed.2d 516(misconduct occurred where juror contacted public defender to inquire about need for search warrant in subject case); U.S. v. Martinez, 14 F.3d 543 (11th Cir.1994)(where juror informed others that defendant faced 160 years imprisonment as sentence and jury used dictionary to define legal terms, defendant was prejudiced and reversal required); U.S. v. Console, 13 F.3d 641, 665 (3rd Cir.1993),cert. denied 511 U.S. 1076, 114 S.Ct. 1660, 128 L.Ed.2d 377 (1994)(juror's discussion of definition of RICO with sister-in-law who was attorney and her repeating definition to jury created presumption of prejudice); Mayhue v. St. Francis Hosp. Of Wichita, Inc., 969 F.2d 919 (10th Cir.1992)(new trial granted where dictionary definitions of legal terms were used during deliberation); U.S. v. Dynalectric Co., 859 F.2d 1559, 1582 (11th Cir.1988), cert. denied 490 U.S. 1006, 109 S.Ct. 1641, 1642, 104 L.Ed.2d 157 (1989)(juror's use of notes from health law class during deliberations coinstituted improper extrinsic evidence); U.S. v. Cheyenne, 855 F.2d 566 (8th Cir.1988)(jury's use of pocket dictionary to define legal terms, during deliberation, warranted hearing); Bayramoglu v. Estelle, 806 F.2d 880 (9th Cir.1986)(misconduct for juror to contact law librarian to inquire about legal issues); U.S. v. Duncan, 598 F.2d 839 (4th Cir.), cert. denied 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979)(misconduct for juror to use dictionary definition of legal terms).

Additionally, juror resort to extraneous information is error even when that information does not stem from an outside source but rather comes from a juror privy to items outside common knowledge. Fitzgibbons v. N.Y.S. Univ. Construc. Fund, supra, 177 A.D.2d 1034, 578 N.Y.S.2d 452; Ryan v. Orange County Fair Speedway, 227 A.D.2d 609, 643 N.Y.S.2d 211 (2d Dept.1996) (new trial ordered on damages where juror who held self out as more knowledgeable than others on issue of personal injuries, disseminated information to jury on issue); People v. Edgerton, 115 A.D.2d 257, 258, 495 N.Y.S.2d 858 (4th Dept.1985), lv. denied 67 N.Y.2d 882, 501 N.Y.S.2d 1033, 492 N.E.2d 1240 (1986)("The circumstance that extra-record facts come from a juror rather than from a stranger to the jury is immaterial. '[I]t is the "nature of the matter and its probable effect on a hypothetical average jury," not the source of information or the locus of its communication, which determines whether the defendant has been prejudiced.' "). As explained by Judge Friendly, as cited in U.S. v. Swinton, 75 F.3d 374, 381 (8th Cir.1996), "There is no rational distinction between the potentially prejudicial effect of extra-record information which a juror enunciates on the basis of the printed word and that which comes from his brain." Based on this reasoning, instruction on the law by an attorney sitting on a jury is an outside influence open to impeachment.

Following publication of the Court's opinion setting the matter down for a hearing, a reporter for The New York Observer, contacted a number of the jurors, interviewed them regarding their deliberations and published an article on the subject. The published article was brought to the attention of the Court and counsel. The jurors' post-trial statements to the reporter were not considered by the Court in determining this motion. See U.S. Football League v. National Football League, 644 F.Supp. 1040 (S.D.N.Y.1986), aff'd. 842 F.2d 1335 (1988).

The hearing at which each of the jurors was questioned, was held over a two day period. The hearing, in essence, had two goals--to determine whether there had been an outside intrusion into jury deliberation and, if so, to analyze whether the intrusion affected the jury's deliberation and verdict. See U.S. v. Olano, 507 U.S. 725, 738-739, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); U.S. ex rel Buckhana v. Lane, 787 F.2d 230, 238 (7th Cir.1986). Since New York case law provides only broad parameters in regard to the procedure to be employed at such a hearing, ³ the Court turned to the large body of Federal case law for guidance as to the conduct of the hearing. Specifically, the Court looked to rule 606(b) of the Federal Rules of Evidence, a rule which, as noted by the New York Court of Appeals in Sharrow v. Dick Corp., 86 N.Y.2d 54, 60-61, 629 N.Y.S.2d 980, 653 N.E.2d 1150, has been adopted by the majority of jurisdictions and is consonant with the underlying principles of New York case law.

Rule 606(b) provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to bear upon...