People v. Hentley
| Decision Date | 30 November 1989 |
| Citation | 547 N.Y.S.2d 876,155 A.D.2d 392 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Thomas HENTLEY, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
T.M. Carlos, New York City, for respondent.
G.S. Koopersmith, Carle Place, for defendant-appellant.
Before MILONAS, J.P., and ROSENBERGER, ELLERIN and RUBIN, JJ.
Judgment, Supreme Court, Bronx County (Fred Eggert, J. at hearing; Steven Barrett, J. at trial and sentence), rendered September 23, 1987, convicting the defendant upon a jury's verdict of attempted sodomy in the first degree, unlawful imprisonment in the second degree, and criminal possession of a weapon in the fourth degree, for which defendant was sentenced as a second felony offender to concurrent terms of incarceration of 7 1/2 to 15 years, and two definite terms of 1 year, respectively, unanimously affirmed.
Defendant's claim that the court failed to make an appropriate inquiry into a jury note asking "what can be done when you feel that there is a personal prejudice among jurors", is not preserved for review as a matter of law. Counsel never objected, nor made any request with respect to the instruction which the court issued in response to the note. (CPL 470.05[2]; People v. Gruttola, 43 N.Y.2d 116, 123, 400 N.Y.S.2d 788, 371 N.E.2d 506 [1977]. A plain reading of this note does not indicate that a juror or jurors exhibited prejudice to the defendant in a manner which may have deprived defendant of a fair trial, as to warrant review in the interest of justice. Nor has defendant preserved his claim that juror number 6 purportedly lied during voir dire when she concealed that she had been the victim of a rape under similar circumstances.
The court, in any event, was not in error in denying defendant's motion to set aside the verdict on this basis. Defendant may not seek to impeach the jury's verdict with a juror's hearsay affidavit. This affidavit purported to report that juror number 6 had expressed bias against the defendant, by reference to her own past victimization. However, a jury verdict ordinarily may not be impeached by a statement of what transpired during deliberation. (People v. Morales, 121 A.D.2d 240, 503 N.Y.S.2d 374 [1st Dept 1986], appeal withdrawn 68 N.Y.2d 766, 506 N.Y.S.2d 1041, 498 N.E.2d 151 [1986]. The narrow exception accorded to improper outside influences does not exist here. (Compare, People v. Morales, supra, with People v. Rukaj, 123 A.D.2d 277, 506 N.Y.S.2d 677 [1st Dept 1986]. Here, there was no jury note indicating that the jury could not reach a verdict because of racial prejudice, or testimony by a juror that she was harassed by violence and threats into changing her vote from acquittal to guilty, such as would have warranted further inquiry by the trial court (see, e.g., People v. Rukaj, supra, at 279, 506 N.Y.S.2d 677.)
Defendant's claim that the prosecutor failed to disclose notes of her interview with the complainant is not preserved as a matter of law. The trial transcript indicates only that, when asked whether the assistant district attorney had memorialized an interview by taking notes, the complainant responded, "I don't remember, she may have." An off-the-record colloquy ensued. However, there is no indication that counsel specifically raised a Rosario claim (People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 [1961], cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64 [1961], and no application for a mistrial was made on this basis. It is the appellant's burden to present a clear factual record for review (People v. Olivo, 52 N.Y.2d 309, 320, 438 N.Y.S.2d 242, 420 N.E.2d 40 [1981]. Defendant has therefore failed to present this court with a reviewable claim (People v. Simonds, 140 A.D.2d 236, 239, 529 N.Y.S.2d 469 [1st Dept., 1988], aff'd 73 N.Y.2d 945, 540 N.Y.S.2d 236, 537 N.E.2d 621 [1989].
Defendant has not demonstrated that the trial court abused its discretion in determining that a written exculpatory statement made by ...
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