People v. Browne

• Decision Date: 31 July 2003
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>GRIFFITH BROWNE, Appellant.
• Court: New York Supreme Court — Appellate Division

307 A.D.2d 645

763 N.Y.S.2d 695

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.GRIFFITH BROWNE, Appellant.

Peters, J.

Decided July 31, 2003.

Cardona, P.J., Crew III, Spain and Lahtinen, JJ., concur.

Peters, J.

Defendant and Andrick Nesbeth were indicted on numerous charges stemming from the beating death of Lamont Thomas in the City of Albany in July 1999. Following a severance, defendant was convicted of manslaughter in the first degree. Defendant's posttrial motions to set aside the verdict were denied and he was sentenced to a prison term of 17½ years. This appeal followed.

Initially, we reject defendant's challenge to the legal sufficiency of the evidence supporting his conviction. The testimony of the prosecution's key witness, Percy Smith, established that, on July 10, 1999, defendant, an admitted drug dealer, had threatened to "take care of" the person who had stolen his drugs. The next day Smith heard defendant, Nesbeth and a third person plan to "get" Thomas that night, saw them enter Thomas's building and subsequently heard moaning coming from Thomas's apartment. Later that night, Nesbeth told Smith that they had "f* * *ed [Thomas] up." Thomas was found badly beaten in his apartment and died four days later as a result of head injuries he suffered in the attack. Defendant's written statement to authorities which described his limited involvement in the beating was admitted on the People's direct case, but repudiated by him at trial.

Viewing the evidence in the light most favorable to the prosecution (see People v Taylor, 94 NY2d 910, 911 [2000]; People v Contes, 60 NY2d 620, 621 [1983]), a jury could rationally conclude that defendant intended to cause serious physical injury to Thomas, that he acted either as a principal or an accomplice in inflicting serious physical injuries and that Thomas died as a result of those injuries (see Penal Law §§ 20.00, 125.20 [1]; People v Lewis, 300 AD2d 827, 828 [2002], lv denied 99 NY2d 630 [2003]; People v Owens, 251 AD2d 898, 899 [1998], lv denied 92 NY2d 951 [1998]; compare People v Stevens, 153 AD2d 768, 769 [1989], affd 76 NY2d 833 [1990]). Viewing this evidence in a neutral light (see People v Bleakley, 69 NY2d 490, 495 [1987]), balanced against defendant's denial of any involvement and the alibi provided by his fiancée, we conclude that the jury's verdict was not against the weight of the evidence (see People v Lewis, supra at 829; People v Reynolds, 269 AD2d 735, 736 [2000], lv denied 95 NY2d 838 [2000], cert denied 531 US 945 [2000]).

Nor do we find merit in defendant's contention that the verdict should have been set aside due to juror misconduct. While CPL 330.30 (2) provides that a verdict may be set aside upon a showing that a juror's improper conduct has "affected a substantial right of the defendant" (see People v Clark, 81 NY2d 913, 914 [1993]), "not every misstep by a juror rises to the inherently prejudicial level at which reversal is required" (People v Brown, 48 NY2d 388, 394 [1979]).

Upon reviewing each instance of juror misconduct to determine whether defendant was prejudiced (see People v Irizarry, 83 NY2d 557, 561 [1994]; People v Leonard, 252 AD2d 740, 741 [1998], lv denied 92 NY2d 983 [1998]), we fail to find error. The allegation by juror No. 9 that several jurors threatened others into a compromise verdict is insufficient for its impeachment where, as here, the proffer is solely "proof of the tenor of its deliberations" (People v Brown, supra at 393; see People v Maragh, 94 NY2d 569, 573 [2000]; People v Anderson, 249 AD2d 405, 405-406 [1998], lv denied 92 NY2d 877 [1998]). Nor do we find prejudice by allegations that juror No. 12 had told juror No. 9, prior to the close of proof, that the case "was going to be an easy case" and that it would be "a good thing to get another drug dealer off the streets." While juror No. 12 admitted to having characterized the case as "easy," juror No. 9's testimony, that she had wholly disregarded these comments, supports Supreme Court's finding (see People v Cilberg, 255 AD2d 698, 700 [1998], lv denied 93 NY2d 968 [1999]; People v Leonard, supra at 741). Finally, we address the admission by juror No. 12 that he and another juror left the hotel where they were sequestered, went to a nearby bar and had several drinks. Testimony revealed that while they were socializing, they did not discuss the case and that their deliberations on the following day were unaffected by the alcohol consumption (see People v Augustine, 235 AD2d 915, 916, 920-921 [1997], appeal dismissed 89 NY2d 1072 [1997], lv denied 89 NY2d 1088 [1997]; People v...