People v. Horney

• Decision Date: 19 April 1984
• Citation: 476 N.Y.S.2d 967,124 Misc.2d 22
• Parties: The PEOPLE of the State of New York v. Barry HORNEY, Defendant.
• Court: New York Supreme Court

Page 967

476 N.Y.S.2d 967

124 Misc.2d 22

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

Supreme Court, Trial Term New York County, Part 31.

April 19, 1984.

Robert Morgenthau, Dist. Atty., New York County, New York City (Beth Jacob, Asst. Dist. Atty., New York City, of counsel), for the People.

Phillips, Nizer, Benjamin, Krim & Ballon, New York City (William F. Reilly, Alan Mansfield, New York City, of counsel), for defendant.

FREDERIC S. BERMAN, Justice:

The defendant, Barry Horney, a New York City transit police officer, was convicted, after a jury trial, of assault in the second degree (Penal Law 120.05) on December 2, 1983. The defendant now seeks to set aside the verdict, pursuant to CPL 330.30(1) and (2), on the grounds that numerous incidents of jury misconduct and misconduct of others in relation to the jury deprived him of his constitutional and statutory right to a fair trial.

Defendant has alleged a multitude of instances of misconduct by jurors and others both prior to and during deliberations. These can be categorized as follows: (1) the physical and mental incompetence of two jurors which rendered them unable to deliberate and to be effectively polled; (2) possible hidden biases that did not surface during voir dire; (3) impermissible predeliberation comments and prejudgment of the case; (4) extra deliberation conversations amongst jurors in their hotel rooms; (5) a newspaper containing a headline concerning police brutality was viewed by some members of the jury during deliberations and (6) an unauthorized communication between a court officer and members of the jury was made.

Factual Background

The defendant was indicted for assault in the second degree for using excessive force in effecting an arrest of one Ronald Dixon in a subway station at 34th Street and 7th Avenue in Manhattan on September 13, 1982. The trial began on November 3, 1983 and the case was submitted to the jury on November 29, 1983. The jury deliberated for four days before returning a verdict of guilty on December 2, 1983.

On December 6, 1983, defendant moved orally to set aside the verdict, alleging improper conduct by jurors, under CPL 330.30(2). Defendant's motion was prompted by a communication to defense counsel by Juror No. 2, which indicated that there may have been some irregularities in the conduct of the jury throughout the trial which would render the verdict unconstitutionally infirm. The motion was renewed formally on papers filed January 3, 1984. Following the People's response, this court concluded that, given the numerous allegations of impropriety (including sworn affidavits by at least six jurors), a hearing was required. (People v. Ciaccio, 47 N.Y.2d 431, 418 N.Y.S.2d 371, 391 N.E.2d 1347 People v. McCurdy, 86 A.D.2d 493, 450 N.Y.S.2d 507 People v. Cadby, 75 A.D.2d 713, 427 N.Y.S.2d 121 [4th Dept.1980].)

Subsequently, hearings were held on February 6, 7 and 10, 1984, at which all twelve jurors and three alternates testified. The matter was adjourned until April 9, 1984 to afford counsel an opportunity to submit briefs and make argument.

LAW

It has long been a general rule in New York that jurors may not impeach their verdicts by affidavit or testimony. (People v. DeLucia, 15 N.Y.2d 294, 296, 258 N.Y.S.2d 377, 206 N.E.2d 324 People v. Brown, 48 N.Y.2d 388, 423 N.Y.S.2d 461, 399 N.E.2d 51 People v. Smith, 87 A.D.2d 357, 451 N.Y.S.2d 429 affd. 59 N.Y.2d 988, 466 N.Y.S.2d 662, 453 N.E.2d 1079 The rule serves to enforce several public policies. It is based on the assumption that the sealing of jurors' lips guarantees finality of jury verdicts as well as protection of the jury from post-trial harassment. It also fosters open discussion among jurors in their deliberation. (People v. DeLucia, supra. See O'Connor, "Jury Impeachment of Verdicts in NY," NYLJ 2/29/80 page 1, col 1.)

This rule against impeachment of verdicts encompasses the ways the individual juror was influenced or the effect on mental processes. (People v. Jacobson, 109 Misc.2d 204, 440 N.Y.S.2d 458, 460 Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 Stein v. New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522 [1953].)

In safeguarding the sanctity of verdicts, the Court of Appeals has stated that "with regard to juryroom deliberations, scarcely any verdict might remain unassailable, if such statements were admissible. Common experience indicates that at times articulate jurors may intimidate the inarticulate, the aggressive may unduly influence the docile. Some jurors may 'throw in' when deliberations have reached an impasse. Others may attempt to compromise. Permitting jurors to testify regarding such occurrences would create havoc." (People v. DeLucia, 20 N.Y.2d 275, 278, 282 N.Y.S.2d 526, 229 N.E.2d 211 supra; People v. Smith, 87 A.D.2d at 359, 451 N.Y.S.2d 429, supra.)

Public policy reasons for not invading the jury deliberations, therefore, must ordinarily override possible injustice to a defendant, for the jury system itself is at stake. (See also People v. Jacobson, 109 Misc.2d 204, 440 N.Y.S.2d 458, supra; People v. Brown, 48 N.Y.2d 388, 423 N.Y.S.2d 461, 399 N.E.2d 51 supra.)

An exception to this rule has been recognized in cases involving the introduction of extraneous material before the jury, or, in other words, "where a jury's deliberation is affected by outside influences." For example: People v. Smith, 87 A.D.2d at 359, 451 N.Y.S.2d 429, supra; Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966) supra, (comments by court personnel on the merits of the case); People v. Brown, 48 N.Y.2d 388, 423 N.Y.S.2d 461, 399 N.E.2d 51 (1979), supra, (juror's performing experiments on their own and reporting results to rest of jury); People v. DeLucia, 20 N.Y.2d 275, 282 N.Y.S.2d 526, 229 N.E.2d 211 (1967), supra; People v. Crimmins, 26 N.Y.2d 319, 310 N.Y.S.2d 300, 258 N.E.2d 708 (1970), (where jurors made unauthorized visits to the scenes of the alleged crimes).

Section 330.30 of the Criminal Procedure Law states that the court may set aside the verdict upon the grounds:

2. That during the trial there occurred, out of the presence of the court, improper conduct by a juror, or improper conduct by another person in relation to a juror, which may have affected a substantial right of the defendant and which was not known to the defendant prior to the rendition of the verdict; ...."

This statute has been interpreted to mean that not every misstep by a juror will require a court to vacate a verdict, but only when there has been improper conduct which may have affected a substantial right of the defendant. "Only those acts which impair a defendant's right to a fair and due consideration of the case by a jury will compel judicial imposition between verdict and sentence." (People v. Phillips, 87 Misc.2d 613, 384 N.Y.S.2d 906 aff'd 52 A.D.2d 758, 384 N.Y.S.2d 715 mot. for lv. to app. den. 39 N.Y.2d 949, 386 N.Y.S.2d 1039, 352 N.E.2d 894 People v. Catalanotte, 67 Misc.2d 351, 324 N.Y.S.2d 106; People v. Brown, 423 N.Y.S.2d at 463, 399 N.E.2d at 53, supra.)

In each case, the facts and circumstances must be examined (without inquiry into the mental processes of the jury) to determine whether or not the defendant has been prejudiced. (People v. Pickett, 61 N.Y.2d 773, 473 N.Y.S.2d 157, 461 N.E.2d 294 People v. Hooker, 118 Misc.2d 760, 462 N.Y.S.2d 123 People v. Ciaccio, 47 N.Y.2d 431, 418 N.Y.S.2d 371, 391 N.E.2d 1347, supra; People v. DeLucia, 15 N.Y.2d 294, 258 N.Y.S.2d 377, 206 N.E.2d 324, supra; People v. Jacobson, 440 N.Y.S.2d 458, supra.)

The defendant has the burden of proving by a preponderance of the evidence every fact essential to support a motion to set aside a verdict (CPL 330.40).

Physical and Mental Competence

In reviewing these "categories" of jury misconduct, as claimed by the defendant, it is clear that, at the outset, this court must reject defendant's claim that Juror No. 2 and Juror No. 3 were physically and mentally incompetent to deliberate as jurors. Not only are these allegations not supported by the record, but any inquiry would be beyond the permissible scope of the exception to the rule of non-impeachment of jury verdicts. A court may not delve into the mental processes of a juror nor into the deliberations of the jury acting as a whole (see People v. Pickett, 61 N.Y.2d 773, 473 N.Y.S.2d 157, 461 N.E.2d 294 ).

That a juror now has a change of heart, or asserts that he was coerced into the verdict or that he even believes in the defendant's innocence, will not affect a verdict and must be ignored in determining the defendant's motion (People v. Pickett 61 N.Y.2d 773, 473 N.Y.S.2d 157, 461 N.E.2d 294, supra; People v. Jacobson, 109 Misc.2d 204, 440 N.Y.S.2d 458 Klimes v. United States, 263 F.2d 273 United States v. Grieco, 261 F.2d 414 United States v. Kohne, 358 F.Supp. 1046 ). The appropriate time for the two jurors to have raised these issues was when the verdict was announced in open court and the jurors polled.

Pre-Existing Biases

Defendant's contention that three jurors did not answer questions on voir dire truthfully so as to deprive him of his right to make challenges also must be rejected. There is no evidence on the record to support this allegation.

The remaining categories of juror misconduct deal with the type of outside and extraneous influences that warrant close scrutiny in determining whether or not defendant's rights were substantially impaired. Since this court is confronted with numerous incidents of misconduct, it is necessary to view their effect, individually and cumulatively, on defendant's right to a fair trial (People v. Saunders, 120 Misc.2d 1087, 467 N.Y.S.2d 110 ).

Pre-deliberation Comments

The duty of a jury not to discuss the case before summations and the court's charge is an important one. "It appears to derive not only from the statutory admonition, ... but also may perhaps be rooted in defendant's right under our State ...