People v. DeLucia

• Decision Date: 18 March 1965
• Citation: 206 N.E.2d 324,15 N.Y.2d 294,258 N.Y.S.2d 377
• Parties: , 206 N.E.2d 324 The PEOPLE of the State of New York, Respondent, v. Fred DeLUCIA and Salvator Montella, Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 377

258 N.Y.S.2d 377

15 N.Y.2d 294, 206 N.E.2d 324

The PEOPLE of the State of New York, Respondent, v. Fred DeLUCIA and Salvator Montella, Appellants.

Court of Appeals of New York.

March 18, 1965.

William Sonenshine, Brooklyn, for appellants.

Frank D. O'Connor, Dist. Atty. (Harvey B. Ehrlich, Laurelton, of counsel), for respondent.

DYE, Judge.

In this joint appeal by permission, the appellants contend that the affirmance in the court below of the trial court's order denying their motion to set aside the verdict and for a new trial amounted to reversible error. The motion ws based on an affidavit by defendants' trial counsel in which he referred to statements allegedly made to him by certain of the jurors shortly after the verdict had been rendered to the effect that they had viewed the premises where the crime was allegedly committed for the purpose of more easily understanding the evidence. There is no allegation that the jurors involved met or spoke with anyone except each other. The premises in question, at 120-20 Queens Boulevard in the Borough of Queens, are across the street and about one block away from the courthouse where the trial was held. It has long been familiar law that jurors may not impeach their own duly rendered verdict by statements or testimony averring their own misconduct within or without the juryroom; much less can they do so by statements presented in the form of hearsay affidavits (People v. Sprague, 217 N.Y. 373, 111 N.E. 1077; Dalrymple v. Williams, 63 N.Y. 361; Fisch, New York Evidence, § 305; Richardson, Evidence (8th ed.), § 423). The rule is founded on sound public policy (Payne v. Burke, 236 App.Div. 527, 260 N.Y.S. 259), which the Federal courts have applied to preclude a juror from testifying as to his own misconduct (McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300). Even though an unauthorized view of such premises is improper it is not, without more, such an impropriety as to require the granting of a new trial (People v. Johnson, 110 N.Y. 134, 17 N.E. 684; People v. Klein, 213 App.Div. 66, 209 N.Y.S. 594; see 58 A.L.R.2d 1147). Absent any competent proof that the defendants were prejudiced in a substantial right affecting the verdict, the motion was properly denied (Code Crim.Proc. § 465; cf. People v. Kraus, 147 Misc. 906, 265 N.Y.S. 294).

Other assigned errors need not detain us. We are satisfied that the proof adduced was sufficient as matter of law to support the judgment of conviction of each defendant on both counts of the indictment. Nor do we find that and error was committed with respect to the arresting officer's testimony on identification from which it might be inferred that the defendant De Lucia had a prior criminal record.

The judgments of conviction should be affirmed.

DESMOND, Chief Judge (dissenting).

The catch phrase 'jurors may not impeach their verdict' does not dispose of the proof that these jurors, depriving defendants of a basic protective right, went on their own to the crime scene, investigated there to check on the officers' testimony and reported back to their fellow members of the jury, all without the knowledge of court or court or counsel. The rule prohibiting self-impeachment by jurors is stretched too far and in the wrong direction when it is used to validate such a transgression of fundamental fair trial rules.

The rule has been so applied on occasion in some lower courts (Clum v. Smith, 5 Hill 560; Sindle v. 761 Ninth Ave. Corp., Sup., 127 N.Y.S.2d 258, affd. 283 App.Div. 939, 130 N.Y.S.2d 880; Tartacower v. New York City Tr. Auth., 9 Misc.2d 606, 169 N.Y.S.2d 695; also perhaps in Haight v. City of Elmira, 42 App.Div. 391, 395, 59 N.Y.S. 193, 195). There is no doubt, however, that the rule and its purposes primarily and reasonably relate to affidavits or statements by jurors describing jury-room deliberations and methods of arriving at verdicts and error or misconduct or mistake in doing so (Dalrymple v. Williams, 63 N.Y. 361, 363; Slater v. United Traction Co., 172 App.Div. 404, 405, 157 N.Y.S. 909, 910; Stein v. People of State of New York, 346 U.S. 156, 178, 73 S.Ct. 1077, 97 L.Ed. 1522). As Wigmore puts it (8 Wigmore, Evidence (McNaughton rev.), § 2349), the effort is to protect against the jurors being questioned after verdict as to their methods of decision or their motives, beliefs, intention or understandings. Wigmore points out (see §§ 2353-2354) that it is...