People v. Martin

• Decision Date: 10 April 1989
• Citation: 149 A.D.2d 534,540 N.Y.S.2d 252
• Parties: The PEOPLE, etc., Respondent, v. James MARTIN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 252

540 N.Y.S.2d 252

149 A.D.2d 534

The PEOPLE, etc., Respondent, v. James MARTIN, Appellant.

Supreme Court, Appellate Division Second Department.

April 10, 1989.

Philip L. Weinstein, New York City (Diane De Seve, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Melissa Harrison and Sally Wasserman, of counsel), for respondent.

Before MOLLEN, P.J., and MANGANO, BROWN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Greenberg, J.), rendered September 15, 1986, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

During deliberations, a juror submitted a note to the trial court informing it that "juror number 10 had done business in the neighborhood in which the crime was committed". Interviews conducted by the trial court revealed that while some of the jurors were examining photographs of the crime scene, juror number 10 pointed out the location of an alley to which a prosecution witness had testified. When asked by the other jurors how he had known where the alley was located, juror number 10 responded that he used to work in that neighborhood. Defense counsel's motion for a mistrial was denied.

The defendant contends that he was deprived of his right to an impartial jury and to his right to confrontation by the failure of juror number 10 to reveal his familiarity with the location where the crime occurred prior to jury selection. We disagree.

The juror's prior familiarity with the neighborhood where the crime occurred cannot be equated with a juror's "conscious, contrived experimentation" (People v. Brown, 48 N.Y.2d 388, 394, 423 N.Y.S.2d 461, 399 N.E.2d 51; People v. Smith, 59 N.Y.2d 988, 990, 466 N.Y.S.2d 662, 453 N.E.2d 1079), a deliberate effort to add to or clarify the evidence presented at trial (People v. Mann, 125 A.D.2d 711, 510 N.Y.S.2d 196, lv. denied, 69 N.Y.2d 748, 512 N.Y.S.2d 1052, 505 N.E.2d 250, lv. denied on reconsideration, 69 N.Y.2d 952, 516 N.Y.S.2d 1036, 509 N.E.2d 371), or an attempt to verify the reliability of prosecution witnesses (cf., People v. Crimmins, 26 N.Y.2d 319, 310 N.Y.S.2d 300, 258 N.E.2d 708; People v. DeLucia, 20 N.Y.2d 275, 282 N.Y.S.2d 526, 229 N.E.2d 211), all of which have been condemned as juror misconduct sufficient to prejudice the rights of a defendant. Moreover, the trial court's interviews with the jurors established that the familiarity of juror number 10 with the neighborhood had no effect on their deliberations (see, People v. Mann, supra ). An examination of the photograph in question revealed that the location of the alley referred to by the prosecution witness was readily apparent.

Most of the objections to the comments of the prosecutor during his summation were sustained by the trial court and curative instructions were provided. Defense counsel neither moved for a mistrial nor sought additional instructions. Therefore, any alleged errors in regard thereto were unpreserved for appellate review...