People v. Horney

• Decision Date: 15 August 1985
• Parties: The PEOPLE of the State of New York, Appellant, v. Barry HORNEY, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 130

493 N.Y.S.2d 130

112 A.D.2d 841

The PEOPLE of the State of New York, Appellant, v. Barry HORNEY, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Aug. 15, 1985.

B.D. Jacob, New York City, for appellant.

W.A. Gogel, New York City, for defendant-respondent.

Before MURPHY, P.J., and ROSS, CARRO, LYNCH, and ELLERIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered April 19, 1984, 124 Misc.2d 22, 476 N.Y.S.2d 967, which, after a hearing, set aside a jury verdict finding defendant guilty of assault in the second degree on the ground of juror misconduct (CPL § 330.30(2)) and ordered a new trial, unanimously reversed on the law and on the facts, the verdict reinstated, and the case remanded for sentencing.

We do not believe that the several minor incidents alleged to constitute juror misconduct affected any substantial right of the defendant or impaired the ability of the jury to fairly and impartially assess the case wherein defendant, a Transit Police Officer, was accused of beating the complainant into unconsciousness with his nightstick after apprehending him for theft of services.

The incidents in question were originally brought to light by one persistent juror (Juror # 2) who telephoned the defense counsel on the Sunday night following the Friday of the verdict to confess that he was "incapacitated" when he voted guilty and actually believed defendant to be innocent. Thereafter, defense counsel moved orally to set aside the verdict, and later brought this motion on papers which included affidavits of three jurors and one alternate alleging improprieties.

At this point the Court correctly directed that a hearing be held to ascertain what actually transpired. (People v. Smith, 59 N.Y.2d 988, 466 N.Y.S.2d 662, 453 N.E.2d 1079). At the hearing all twelve jurors and three alternates testified extensively. The testimony of the other jurors contradicted in the main the allegations made by the dissatisfied juror (Juror # 2) and accorded minimal significance to those of his allegations which were in some measure supported. Nevertheless, the trial court found that four distinct categori of prohibited activity did, in fact, transpire and held that the cumulative weight of these errors damaged defendant's right to a fair trial.

After a four week long trial, the jury commenced deliberations on Tuesday, November 29, 1983 and was sequestered throughout the week until Friday afternoon December 2, 1983, when it reached its unanimous guilty verdict.

The jury conscientiously deliberated during this extensive four day period and by Thursday afternoon the complaining juror herein was the lone holdout for acquittal. By Friday afternoon he voluntarily assented to vote guilty and lucidly explained his reasons to his fellow jurors, admitting no reservations. He was not coerced nor was his vote a "cavein" vote, according to the testimony of the jurors at the hearing. (This juror testified that he was physically and mentally exhausted, and hysterical and incapable of reaching a decision.) The forelady waited one half hour more before announcing the verdict to insure his lack of reservation. Then, when polled, by the court, neither did this juror nor any other, express any reservations or hesitation.

Before specifically addressing the instances of misconduct found by the trial court, we must note some general principles which must guide a court in determining whether to set aside a jury verdict.

More than irregularities or an indiscretion of the jury alone warrant a new trial. "It must be demonstrated that the fundamental right to a fair and impartial assessment of the facts were frustrated" by the alleged misconduct. (People v. Phillips, 87 Misc.2d 613, 625, 384 N.Y.S.2d 906 aff'd 52 A.D.2d 758, 384 N.Y.S.2d 715 lv. app. den. 39 N.Y.2d 949.)

Moreover, the jurors themselves may not as a general rule impeach their own duly rendered verdict by statements or testimony averring their own misconduct. (People v. DeLucia, 15 N.Y.2d 294, 258 N.Y.S.2d 377, 206 N.E.2d 324 cert den. 382 U.S. 821, 86 S.Ct. 50, 15 L.Ed.2d 67 on reargument 20 N.Y.2d 275, 282 N.Y.S.2d 526, 229 N.E.2d 211.) As the court below properly noted, the finality of the jury verdict (CPL § 310.80) will not be disturbed simply because a juror has a change of heart. (See People v. Jacobson, 109 Misc.2d 204, 440 N.Y.S.2d 458.)

Against this background we examine the four errors which led the trial court to set aside the verdict.

A. PREDELIBERATION COMMENTS

The first error relates to various predeliberation comments allegedly made by several jurors on different occasions. A review of the record does not support the finding that many of these comments were actually made, or if made, were heard by other jurors. Most of the comments were testified to by Juror # 2 and one alternate juror. However, their testimony in that regard was contradicted by the testimony of the other jurors.

Even assuming that these comments were heard by the other jurors, as apparently found by the trial court, they were not lengthy discussions but merely terse asides. Moreover, these comments were not prejudicial in nature, as they did not indicate premature deliberations or sifting of facts, or any predetermined opinions based upon "outside influences". In the whole these comments related to tangential issues unrelated to the evidence. (Cf. People v. Marrero, 83 A.D.2d 565, 441 N.Y.S.2d 12.)

B. DISCUSSIONS AT THE HOTEL

During the second night of sequestration at the hotel, two pairs of juror roommates held brief conversations regarding the case.

The first pair, who at the time were both for acquittal, briefly discussed some of the evidence, and their hesitant feelings. However, it cannot be said that this discussion constituted prejudicial...