People v. Maffei

• Court: New York Supreme Court
• Writing for the Court: JOHN T. HECHT, J.
• Citation: People v. Maffei, 2021 NY Slip Op 51319(U), Indictment No. 844/2006 (N.Y. Sup. Ct. Jul 28, 2021)
• Docket Number: Indictment No. 844/2006
• Decision Date: 28 July 2021
• Parties: The People of the State of New York v. Robert Maffei, Defendant.

2021 NY Slip Op 51319(U)

The People of the State of New York v. Robert Maffei, Defendant.

Indictment No. 844/2006

Supreme Court, Kings County

July 28, 2021

Unpublished Opinion

ADA Ann Bordley, Kings County District Attorney's Office.

David P. Greenberg, Esq.

JOHN T. HECHT, J.

Defendant Robert Maffei moves to set aside his conviction pursuant to CPL § 440.10 or, in the alternative, for a hearing. The People oppose. Defendant has replied.

Following a jury trial, defendant was convicted of depraved indifference murder and sentenced, on May 21, 2008, to a prison term of 25 years to life (Holdman, J., at trial and sentence).

Defendant raises a single claim in his motion, that his trial attorney was ineffective for failing to challenge prospective juror number 10 during jury selection.

Jury selection commenced on April 16, 2008, with the examination of the first panel of 16 prospective jurors, including prospective juror number 10. This juror informed the court that he worked construction, had never served on a jury, and had an uncle and a cousin in law enforcement in Puerto Rico.

In response to a question by the court, prospective juror number 10 responded that he had previously been charged with possession of marijuana and sentenced to community service assuring the court that that experience would not cause him to be unfair in this case.

The court questioned two other prospective jurors about their prior experiences as crime victims, excusing them when they were unable to state that those experiences would not affect their ability to be fair and impartial. The parties did not object, and they were replaced.

Defendant's claim centers on prospective juror number 10's statement to the prosecutor when he questioned members of the panel about their ability to be fair. Upon providing a synopsis of the case, the prosecutor asked the prospective jurors whether there was anything in their backgrounds that might affect their ability to be fair and impartial. In response prospective juror number 10 requested to speak and informed the prosecutor that he thought that he had read about the case in the newspapers and he "kind of" made up his mind. The prospective juror opined, "Didn't like the circumstances. I remember reading about it, making a decision kind of in my own head at the time." The prosecutor further questioned him, and the following exchange ensued:

[Prosecutor]: You understand it's up to me now to prove to you, beyond a reasonable doubt, who is the actual person that actually did it, right?

[Juror]: Right.

[Prosecutor]: You might have made up your mind. I believe that was a really bad act. I didn't like the way it happened. Do you understand I have to prove who did it?

[Juror]: Yes.

The court intervened, explaining that the jury would be instructed to avoid any media coverage of the case. The court further instructed this prospective juror that, although "[t]here's nobody here who is in favor of someone being shot to death in most circumstances," it is the burden of the prosecutor "to prove that this is the person who did that. Okay? You can remain fair and impartial?" When the prospective juror responded "I hope so," the court attempted to get a more definitive answer, to which the juror replied, twice, "I am not sure."

The prosecutor later explained to the prospective jurors the difference between depraved indifference murder and intentional murder, informing the panel that the crimes involved the same punishment. When the prosecutor asked the panel if they thought this was so unfair that they could not follow the law, prospective juror number 10 responded "I feel if it's a good case, I'll go by the law."

The prosecutor further questioned this prospective juror about his prior arrest for marijuana, asking him if he felt the police had treated him fairly. Prospective juror number 10 replied that he was treated fairly "[a]t one point" but not at the "[t]ime I was arrested," although he was not angry about the incident. When questioned about his relatives in law enforcement, he indicated that he did not speak to them about their cases and that he would judge police officers as any other witnesses.

Defense counsel proceeded to speak to the prospective jurors reminding them about the presumption of innocence and that the People must prove defendant guilty beyond a reasonable doubt, asking, "Can each of you absorb and apply that rule of law that's been told to you this morning? Anyone who cannot?" He asked several prospective jurors for their assurance that they would follow the law regarding defendant's 5th Amendment privilege and not hold it against him should he choose not to testify. Seven unnamed jurors said they would follow the law, while one unnamed juror indicated, "I am not sure I wouldn't want him up here to hear his version and to evaluate as well as listening to all the other stuff."

Defense counsel further asked the prospective jurors, individually and collectively, about their personal exposure to law enforcement, their experience with handguns, and whether they would be surprised if witnesses appeared before them, swore to tell the truth, and proceeded to lie on the stand.

Defense counsel asked four unnamed prospective jurors whether they would be willing to acquit defendant if the prosecution did not meet its burden of proof. All four answered yes. Finally, counsel asked the entire panel to answer, by a show of hands, if they, as individual jurors, would be able to "stick to the courage of [their] convictions," even if each were the sole juror who did not believe that the prosecutor had proven defendant's guilt beyond a reasonable doubt. Counsel further asked each prospective juror for the assurance that he or she would be "accountable to the job you've been asked to do" and, conversely, urged those who could not to notify him by a show of hands.

After the conclusion of the first round of questioning prospective jurors, the trial court proposed that five jurors be excused for cause. A further discussion ensued between the court and the parties about the prospective jurors who had failed to raise their hands in response to defense counsel's question about whether they could stick to their convictions. The court pointed out that one of the jurors had failed to raise her hand. Defense counsel informed the court that another prospective juror also did not raise his hand. The court responded, "That was an oversight on my part. He's also released on consent."

Six prospective jurors were excused for cause on consent of the parties. Two were excused because they had failed to raise their hands, thereby not assuring defense counsel that they could be steadfast if they believed the prosecution failed in its burden. Prospective juror number 10 was not identified as one of these jurors, thus demonstrating that he had answered defense counsel's question affirmatively. Neither the court nor the parties sought to excuse prospective juror number 10 for cause.

There were no further cause challenges by either party in this round of jury selection. The prosecutor peremptorily challenged three prospective jurors. Defense counsel conferred with his client and then peremptorily challenged three prospective jurors. The parties consented to seating three men and one woman on the jury. Prospective juror number 10 was seated as juror number four.

After the second round of jury selection, the parties consented to the court's proposal that one of the prospective jurors be excused. Additionally, defense counsel proposed that "number 7 and number 16" also be excused for cause. The prosecutor concurred, stating that number 7 "believes he would give a leg up to police officers if they testify," and number 16 believed that the police treated her husband unfairly during his arrest, and "it would be in the back of her mind." Both prospective jurors were excused on consent. The prosecution peremptorily challenged three prospective jurors. Defense counsel peremptorily challenged seven prospective jurors. The parties consented to seating three additional men and one woman on the jury.

At the conclusion of the third and final round of jury selection, the court proposed removing eight jurors for cause, to which the parties agreed. Defense counsel peremptorily challenged prospective juror number 9. The prosecution did not exercise any peremptory challenges in that round. When the prosecutor objected to one prospective alternate juror, the parties consented to seating three alternate jurors. After speaking with his client, defense counsel withdrew his previous peremptory challenge to prospective juror 9. The court questioned the defendant:

The Court: Mr. Maffei, you have discussed this with [counsel]?

The Defendant: Yes

The Court: You understand that you exercised your right to a peremptory challenge to juror 9 previously. But now you withdraw that peremptory challenge and are agreeing [to] seat him as number 4 alternate, is that right?

The Defendant: Yes, sir.

With that, prospective juror 9 was seated as alternative juror four, and the entire jury was sworn. The jury consisted of eight men and four women. The alternate jurors consisted of three men and one woman.

The People presented evidence that, on May 17, 2003, at approximately 2:40 AM, defendant, seated in the backseat of a white Lincoln, fired a single gunshot into a Subaru, striking and killing one of its passengers.

Defense counsel articulated a theory that defendant was not the shooter and that the prosecution's witnesses were lying about the events surrounding the shooting. This theory was consistent throughout defense counsel's opening remarks his cross-examination of the People's witnesses, and his summation. Trial counsel cross-examined the...