People v. Jerge

Citation935 N.Y.S.2d 396,2011 N.Y. Slip Op. 09372,90 A.D.3d 1486
PartiesThe PEOPLE of the State of New York, Respondent, v. Timothy L. JERGE, Defendant–Appellant.
Decision Date23 December 2011
CourtNew York Supreme Court Appellate Division

2011 N.Y. Slip Op. 09372
90 A.D.3d 1486
935 N.Y.S.2d 396

The PEOPLE of the State of New York, Respondent,
v.
Timothy L. JERGE, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Dec. 23, 2011.


[935 N.Y.S.2d 397]

Thomas Theophilos, Buffalo, for Defendant–Appellant.

Lori Pettit Rieman, District Attorney, Little Valley, for Respondent.

PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND LINDLEY, JJ.

MEMORANDUM:

[90 A.D.3d 1486] Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, sexual abuse in the second degree (Penal Law § 130.60[2] ) and course of sexual conduct against a child in the second degree (§ 130.80[1][b] ). We agree with defendant that County Court erred in denying his motion to set aside the verdict based on juror misconduct.

CPL 330.30 provides in relevant part that a court may, upon motion of the defendant, set aside a verdict on the ground that “during the trial there occurred, out of the presence of the court, improper conduct by 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” (CPL 330.30[2] ). As a general rule, “a jury verdict may not be impeached by probes into the jury's deliberative process; however, a showing of improper influence provides a necessary and narrow exception to the general proposition” ( People v. Maragh, 94 N.Y.2d 569, 573, 708 N.Y.S.2d 44, 729 N.E.2d 701; see People v. Brown, 48 N.Y.2d 388, 393, 423 N.Y.S.2d 461, 399 N.E.2d 51; People v. Scerbo, 59 A.D.3d 1066, 1068, 872 N.Y.S.2d 763, lv. denied 12 N.Y.3d 821, 881 N.Y.S.2d 29, 908 N.E.2d 937). Improper influence encompasses “even well-intentioned jury conduct which tends to put the jury in possession of evidence not introduced at trial” ( Brown, 48 N.Y.2d at 393, 423 N.Y.S.2d 461, 399 N.E.2d 51).

[90 A.D.3d 1487] “Of course, not every misstep by a juror rises to the inherently prejudicial level at which reversal is required automatically” ( id. at 394, 423 N.Y.S.2d 461, 399 N.E.2d 51). Rather, “[e]ach case must be examined on its unique facts to determine the nature of the misconduct and the likelihood that prejudice was engendered” ( People v. Clark, 81 N.Y.2d 913, 914, 597 N.Y.S.2d 646, 613 N.E.2d 552; see Scerbo, 59 A.D.3d at 1068, 872 N.Y.S.2d 763). Juror misconduct constitutes reversible error where “(1) jurors conduct[ ] personal specialized assessments not within the common ken of juror experience and knowledge (2) concerning a material issue in the case, and (3) communicat[e] that expert opinion to the rest of the jury panel with the force of private, untested truth as though it were evidence” ( Maragh, 94 N.Y.2d at 574, 708 N.Y.S.2d 44, 729 N.E.2d 701; see People v. Santi, 3 N.Y.3d 234, 249, 785 N.Y.S.2d 405, 818 N.E.2d 1146).

Here, the evidence at the post-trial hearing on defendant's CPL 330.30 motion established that two jurors interjected their professional knowledge into the jury deliberations by voicing professional opinions that were not the subject of expert testimony at trial ( see Maragh, 94 N.Y.2d at 575–576, 708 N.Y.S.2d 44, 729 N.E.2d 701). The subject jurors—a caseworker employed by a county department of social services (DSS) with a bachelor's degree in social work and a licensed substance abuse counselor with a bachelor's degree in human services—conveyed to the rest of the jury panel that they had professional experience working with or counseling child victims of sexual abuse. According to the two jurors who testified at the hearing concerning the subject jurors, the DSS caseworker advised the jury that she worked in a child protective capacity. One

[935 N.Y.S.2d 398]

of the testifying jurors recalled that, when members of the jury voiced concerns about the victim's credibility based upon, inter alia, her inability to recall dates or details about the sexual abuse, the delay in reporting, and the victim's failure to avoid defendant, the subject jurors made statements to the effect that “we deal with this every day,” and “this is the pattern of how these things normally take place.” That juror explained that “it was a lot like [the subject jurors] were testifying in the jury room,” and he expressly testified that he was swayed by the opinions of the subject jurors in voting to convict defendant. The other testifying juror similarly recalled that, when members of the jury questioned the victim's credibility, the subject jurors responded, “that is how a sexually abused victim would act and that's normal behavior.” She testified that the subject jurors said that it was “normal” for sexual abuse victims to “block ... out” the abuse and that, as a result, “they wouldn't be able to remember” specific dates, times and places. According to that juror, one of the subject jurors went so far as to tell the jury that, when he had worked with child victims of sexual abuse, “this is how they would act.” The juror [90 A.D.3d 1488] testified that she changed her vote from acquittal to conviction based on the opinions of the subject jurors.

In denying defendant's CPL 330.30 motion, the court erred in concluding that it was “common knowledge” that victims of sexual abuse may both delay reporting and be unable to recall specifics of the abuse. The behavior and response of a victim of sexual abuse is “not within the common ken of juror experience and knowledge” ( Maragh, 94 N.Y.2d at 574, 708 N.Y.S.2d 44, 729 N.E.2d 701; see People v. Taylor, 75 N.Y.2d 277, 289, 552 N.Y.S.2d 883, 552 N.E.2d 131). Indeed, it is not uncommon for courts to permit expert testimony on precisely the subject at issue here, i.e., the behavior of a victim of sexual abuse ( see e.g. People v. Carroll, 95 N.Y.2d 375, 387, 718 N.Y.S.2d 10, 740 N.E.2d 1084; Taylor, 75 N.Y.2d at 289, 552 N.Y.S.2d 883, 552 N.E.2d 131; People v. Torres, 78 A.D.3d 866, 910 N.Y.S.2d 381; People v. Gregory, 78 A.D.3d 1246, 1247, 910 N.Y.S.2d 295, lv. denied 16 N.Y.3d 831, 921 N.Y.S.2d 195, 946 N.E.2d 183; People v. Wellman, 166 A.D.2d 302, 560 N.Y.S.2d 643, lv. denied 78 N.Y.2d 958, 573 N.Y.S.2d 653, 578 N.E.2d 451).

We thus agree with defendant that the subject jurors offered improper professional opinions that were not the subject of expert testimony and were not subject to cross-examination, thereby depriving defendant of a fair trial ( see Maragh, 94 N.Y.2d at 575–576, 708 N.Y.S.2d 44, 729 N.E.2d 701; People v. Stanley, 87 N.Y.2d 1000, 1001–1002, 642 N.Y.S.2d 620, 665 N.E.2d 190). Indeed, the subject juror comments in this case are particularly problematic because they stated not only that sexual abuse victims may delay reporting or be unable to recall specifics of the abuse, which may be the proper subject of expert testimony ( see Gregory, 78 A.D.3d at 1247, 910 N.Y.S.2d 295), but they also went a step further and opined that, “based upon their professional experience, [the victim] acted like a victim of sexual abuse.” That was improper ( see Carroll, 95 N.Y.2d at 387, 718 N.Y.S.2d 10, 740 N.E.2d 1084).

In light of our determination that reversal is required, we need not address defendant's remaining contentions.

All concur except FAHEY, J., who dissents and votes to modify in accordance with the following Memorandum:

I respectfully dissent because I do not agree with the majority that County Court erred in denying defendant's post-trial motion

[935 N.Y.S.2d 399]

pursuant to CPL 330.30(2) seeking to set aside the verdict based on juror misconduct. I dissent insofar as the majority concludes that reversal is required on that ground. Nevertheless, I would vote to modify the judgment as a matter of discretion in the interest of justice, and on the law, by reversing that part convicting defendant of sexual abuse in the second degree under count two of the indictment inasmuch as that count was rendered duplicitous by the testimony at trial, as I shall discuss herein. I would dismiss that count without prejudice to the People to re-present any appropriate charge under that count to another grand jury.

[90 A.D.3d 1489] “Generally, a jury verdict may not be impeached by probes into the jury's deliberative process,” but CPL 330.30 embodies the “narrow exception to [that] general proposition” ( People v. Maragh, 94 N.Y.2d 569, 573, 708 N.Y.S.2d 44, 729 N.E.2d 701). That statute provides, in relevant part, that the court may, upon motion of the defendant, set aside the verdict on the ground “[t]hat 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” (CPL 330.30[2] ).

Here, at the hearing on his CPL 330.30 motion, defendant presented the testimony of two...

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5 cases
  • People v. Kirk
    • United States
    • New York Supreme Court — Appellate Division
    • June 8, 2012
    ...“[I]t is not uncommon for courts to permit expert testimony on ... the behavior of ... victim[s] of sexual abuse” ( People v. Jerge, 90 A.D.3d 1486, 1488, 935 N.Y.S.2d 396), and the testimony of the expert witness “was properly introduced to explain the hesitancy of child abuse victims to d......
  • People v. Jones
    • United States
    • New York Supreme Court — Appellate Division
    • November 9, 2012
    ...inasmuch as “ ‘a jury verdict [generally] may not be impeached by probes into the jury's deliberative process' ” ( People v. Jerge, 90 A.D.3d 1486, 1486, 935 N.Y.S.2d 396, quoting People v. Maragh, 94 N.Y.2d 569, 573, 708 N.Y.S.2d 44, 729 N.E.2d 701). A verdict, however, may be impeached by......
  • N. B. v. United States
    • United States
    • U.S. District Court — Eastern District of New York
    • August 3, 2021
    ...987 N.E.2d 260 (2013) ; People v. Carroll , 95 N.Y.2d 375, 387, 718 N.Y.S.2d 10, 740 N.E.2d 1084 (2000) ; and People v. Jerge , 90 A.D.3d 1486, 1487, 935 N.Y.S.2d 396 (2011) – are inapposite because plaintiff's hearing was not a criminal trial. Doe , 307 F. Supp. 3d at 127 ("[D]ue process d......
  • People v. Alvarez
    • United States
    • New York Supreme Court — Appellate Division
    • January 7, 2021
    ...apartment by mistake (see People v. Maragh, 94 N.Y.2d 569, 574, 708 N.Y.S.2d 44, 729 N.E.2d 701 [2000] ; People v. Jerge, 90 A.D.3d 1486, 1487–1488, 935 N.Y.S.2d 396 [4th Dept. 2011] ). We find it unnecessary to reach any other issues relating to the juror. The motion court correctly found ......
  • Request a trial to view additional results
9 books & journal articles
  • Submission to jury
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2018 Contents
    • August 2, 2018
    ...injected into the deliberations any specialized assessment not within the common ken of juror experience and knowledge. People v. Jerge , 90 A.D.3d 1486 (4th Dept. 2011). In sexual abuse prosecution, it was reversible error for jurors who were a licensed substance abuse counselor and a Depa......
  • Submission to jury
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2020 Contents
    • August 2, 2020
    ...injected into the deliberations any specialized assessment not within the common ken of juror experience and knowledge. People v. Jerge , 90 A.D.3d 1486 (4th Dept. 2011). In sexual abuse prosecution, it was reversible error for jurors who were a licensed substance abuse counselor and a Depa......
  • Submission to jury
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2015 Contents
    • August 2, 2015
    ...views with that of the defense expert. The jurors’ conduct was prejudicial to defendant’s right of cross-examination. People v. Jerge, 90 A.D.3d 1486 (4th Dept. 2011). In sexual abuse prosecution, it was reversible error for jurors who were a licensed substance abuse counselor and a Departm......
  • Submission to jury
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2019 Contents
    • August 2, 2019
    ...not within the common ken of juror experience and knowledge. SUBMISSION TO JURY §20:30 NEW YORK OBJECTIONS 20-14 People v. Jerge , 90 A.D.3d 1486 (4th Dept. 2011). In sexual abuse prosecution, it was reversible error for jurors who were a licensed substance abuse counselor and a Department ......
  • Request a trial to view additional results

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