People v. Anderson

• Decision Date: 13 April 1998
• Citation: 671 N.Y.S.2d 149,249 A.D.2d 405
• Court: New York Supreme Court — Appellate Division
• Parties: , 1998 N.Y. Slip Op. 3430 The PEOPLE, etc., Respondent, v. Henry ANDERSON, Appellant.

Page 149

671 N.Y.S.2d 149

249 A.D.2d 405, 1998 N.Y. Slip Op. 3430

The PEOPLE, etc., Respondent, v. Henry ANDERSON, Appellant.

Supreme Court, Appellate Division,

Second Department.

April 13, 1998.

Lynn W.L. Fahey, New York City (De Nice Powell, of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie and David O. Leiwant, of counsel), for respondent.

Before O'BRIEN, J.P., and RITTER, THOMPSON and JOY, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (George, J.), rendered May 20, 1996, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the court erred in denying his motion to set aside the verdict, inter alia, on the ground of juror misconduct during deliberations. Absent special circumstances, testimony of jurors regarding the tenor of the jury's deliberations is not ordinarily competent to impeach a duly rendered verdict (see, People v. Brown, 48 N.Y.2d 388, 393, 423 N.Y.S.2d 461, 399 N.E.2d 51; People v. Smalls, 112 A.D.2d 173, 175, 490 N.Y.S.2d 851). However, a verdict may be impeached upon a showing of improper influence (see, People v. Brown, supra). Here, the defendant attempted to show that some jurors pressured and prevailed upon two other jurors in order to prevent further deliberations and a third night of sequestration. Thus, the defendant does not raise an issue of improper influence, but rather seeks to impeach the verdict by delving into the tenor of the jury's deliberative process. Furthermore, the alleged behavior of the other jurors was not brought to the court's attention until after the verdict was accepted and the jurors discharged (cf., People v. Lavender, 117 A.D.2d 253, 502 N.Y.S.2d 439). Under these circumstances, it was a proper exercise of the court's discretion to deny the defendant's motion to set aside the verdict on this ground (see, People v. McKenzie, 173 A.D.2d 493, 570 N.Y.S.2d 300).

Furthermore, the court did not improvidently exercise its discretion when it instructed the jury to continue deliberations. Although the jury deliberated for three days and sent at least three deadlock notes, there were various requests for readbacks (see, People v. Gonzalez, 140 A.D.2d 369, 370, 527 N.Y.S.2d 855) and deliberations had to begin anew on the second day of deliberations when a juror was replaced by an alternate juror. Additionally, while the jury may have violated the requirement that they deliberate together (see, CPL 310.10), this conduct does not mandate that the verdict be set aside (see, People v. Johnson, 224 A.D.2d 635, 639 N.Y.S.2d 407; People v. Lehrman, 155 A.D.2d 693, 548 N.Y.S.2d 260). Thus, the defendant was not denied his right to a fair trial.

The defendant's sentence was not excessive.

The defendant's remaining contentions are either unpreserved for appellate review (see, CPL 470.05[2] ) or without merit.

O'BRIEN, J.P., and THOMPSON and JOY, JJ., concur.

RITTER, J., dissents and votes to hold the appeal in abeyance and remit the matter to the Supreme Court, Kings County, for a hearing to determine the defendant's motion pursuant to CPL 330.30 to set aside the verdict on the ground of juror misconduct, with the following memorandum:

Because I believe that the Supreme Court erred in denying, without a hearing, the defendant's motion pursuant to CPL 330.30 to set aside the verdict on the ground of juror misconduct, I respectfully dissent.

The defendant's conviction arose from deliberations that included multiple declarations of deadlock, the rendering of two verdicts of guilt which were not accepted by the court (during the first of which Juror No. 11, when polled, repeatedly refused to state whether the verdict was hers and, when pressed, stated "I don't know"), and the excusing of an angry and disgruntled juror and the recommencement of deliberations with an alternate juror. As noted by the majority, a duly rendered verdict may not, with rare exception, be impeached by proof of the tenor of the jury's deliberations (see, People v. Brown, 48 N.Y.2d 388, 423 N.Y.S.2d 461, 399 N.E.2d 51; People v. De Lucia, 20 N.Y.2d 275, 282 N.Y.S.2d 526, 229 N.E.2d 211; People v. Smalls, 112 A.D.2d 173, 490 N.Y.S.2d 851). Here, however, the record implicates issues beyond the mere tenor of the deliberations that should not have been summarily resolved.

In support of his motion pursuant to CPL 330.30 to set aside the verdict, the defendant submitted sworn allegations made by Juror No. 11 as to various events that occurred during deliberations. Juror No. 11 averred that, although she had been holding out for an acquittal, she felt not just intimidated, but "threatened for [her] life" during deliberations when, inter alia, a fellow juror tried to physically assault her and had to be removed from the jury room by three court officers. Juror No. 11 also averred that during the removed juror's absence, the jury continued to deliberate. It is not disputed that neither the court nor counsel were timely notified of these events.

Pursuant to CPL 310.10(1), the jury, once charged, must be "continuously kept together under the supervision of a court officer or court officers". Thus, once deliberations have commenced, it has been held error to allow a jury to continue to deliberate in the absence of any member (see, People v. Scott, 182 A.D.2d 649, 582 N.Y.S.2d 238) or for any member to be unsupervised (see, People v. Fernandez, 81 N.Y.2d 1023, 599 N.Y.S.2d 911, 616 N.E.2d 497; People v. Coons, 75 N.Y.2d 796, 552 N.Y.S.2d 94, 551 N.E.2d 587). However, not every misstep by the jury requires a reversal of the judgment (see, People v. Brown, 48 N.Y.2d 388, 423 N.Y.S.2d 461, 399 N.E.2d 51; People v. Lehrman, 155 A.D.2d 693, 548 N.Y.S.2d 260). Various de minimis separations and ones brought about by the simple practicalities of the deliberative process have been excused (see, People v. Fernandez, 81 N.Y.2d 1023, 599 N.Y.S.2d 911, 616 N.E.2d 497; People v. Dunbar Contr. Co., 215 N.Y. 416, 109 N.E. 554; People v. Johnson, 224 A.D.2d 635, 639 N.Y.S.2d 407; People v. Lee, 205 A.D.2d 558, 613 N.Y.S.2d 208). Rather, the claimed error must have impaired the defendant's right to a fair trial (see, People v. Brown, 48 N.Y.2d 388, 423 N.Y.S.2d 461, 399 N.E.2d 51; People v. Dunbar Contr. Co., 215 N.Y. 416,...