People v. Hammond
| Decision Date | 23 July 1987 |
| Citation | 132 A.D.2d 849,518 N.Y.S.2d 60 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Carl HAMMOND, Appellant. |
| Court | New York Supreme Court — Appellate Division |
John J. Ryan, Jr., Elmira, for appellant.
James Hayden, Dist. Atty., Elmira, for respondent.
Before MAIN, J.P., and WEISS, MIKOLL, YESAWICH and HARVEY, JJ.
Appeal from a judgment of the County Court of Chemung County (Danaher, Jr., J.), rendered December 9, 1985, upon a verdict convicting defendant of the crime of promoting prison contraband in the first degree.
During a random pat frisk of defendant, an inmate at Elmira Correctional Facility, a pen with a piece of sharpened metal approximately two inches long melted into the top was found in his possession. Defendant was thereafter indicted by a Chemung County Grand Jury and charged with promoting prison contraband in the first degree.
During voir dire, it was disclosed that one member of the panel of prospective jurors, William Van Wert, had been employed for 30 years as a correction officer at Elmira Correctional Facility until he retired in 1978. Defense counsel challenged other members of the panel for cause on the basis of their connections with the Department of Correctional Services but did not challenge Van Wert.
In the course of the trial, the prosecution attempted to call an unexpected witness, another correction officer. Van Wert disclosed that he knew this officer and, out of the presence of the jury, stated that this acquaintanceship led him to believe that the prospective witness was generally trustworthy and credible. Defendant moved for a mistrial, the prosecution withdrew the witness and County Court denied the motion for mistrial. The jury found defendant guilty as charged. Prior to sentencing, defendant moved to set aside the verdict on the ground of improper juror conduct based on an affidavit of a juror complaining of comments allegedly made during deliberations by Van Wert. County Court denied the motion and sentenced defendant as a predicate felon to an indeterminate prison term of 2 1/2 to 5 years. This appeal ensued.
There should be an affirmance. Defendant's contention that County Court erred in denying defendant's motion to set aside the verdict for juror misconduct is without merit. The affidavit of the complaining juror alleged that Van Wert stated, among other things, that "defendant's guilt [is] obvious since all inmates [are] guilty". The affidavit does no more than attribute indiscreet remarks to Van Wert and does not indicate that Van Wert impermissibly influenced other jurors or that he attempted to do so. Generally, only where there is a showing of the injection of improper outside influences into the jurors' deliberations will postverdict affidavits be considered for the purpose of impeaching a jury verdict (see, People v. De Lucia, 20 N.Y.2d 275, 282 N.Y.S.2d 526, 229 N.E.2d 211). No such improper influence is demonstrated here.
Further, a postverdict objection to a juror will only be considered where a defendant shows that the grounds for the challenge were unknown to him beforehand and would not have been disclosed by a proper inquiry during voir dire (People v. Albright, 104 A.D.2d 508, 479...
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