People v. Morales

• Decision Date: 12 June 1986
• Parties: The PEOPLE of the State of New York, Respondent, v. Santos MORALES, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 374

503 N.Y.S.2d 374

121 A.D.2d 240

The PEOPLE of the State of New York, Respondent, v. Santos MORALES, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

June 12, 1986.

S.L. Valle, Staten Island, for respondent.

R.E. Precht, New York City, for defendant-appellant.

Before KUPFERMAN, J.P., and SULLIVAN, ROSS, CARRO and FEIN, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (Ivan Warner, J.), rendered December 28, 1984, convicting defendant, after a jury trial, of the crimes of burglary in the second degree (Penal Law § 140.25, subdivision 2), and of robbery in the second degree (Penal Law § 160.10, subdivisions 1 and 2) [two counts], adjudicating him a youthful offender, and sentencing him to two concurrent indeterminate terms of imprisonment of from one and one-third to four years, ^* is affirmed, without prejudice to defendant, if so advised, making a Criminal Procedure Law, Article 440 motion.

At approximately 10:45 P.M., on September 7, 1983, the defendant, together with three other persons, broke into the apartment of sixty-five year old Walter Brown (Mr. Brown), which was located at 1979 Daley Avenue, in the Bronx. Once the defendant and his accomplices were in Mr. Brown's apartment, they struck him in the ribs, and robbed him of $237.00. Mr. Brown recognized the defendant as a tenant, who lived in the building where this crime took place.

Promptly, after these robbers left his apartment, Mr. Brown reported this crime to the police, who quickly arrested defendant.

Soon after the date of defendant's conviction, but prior to the date of sentence, defendant's counsel moved to set aside the verdict, based upon an allegation that juror number six had lied, when she stated during voir dire that she had never been the victim of a crime. Moreover, the defense counsel contended that as a result of this lie the juror was selected as a member of the jury, and, that, as a member of the jury, she allegedly used her experience as a crime victim, to convince the other jurors to convict the defendant. In support of these allegations, defense counsel submitted an affidavit from juror number nine. The Trial Court denied the motion, without a hearing. Defendant argues that the Trial Court erred.

It is the law in this State that "... generally, a jury verdict may not be impeached by proof of the tenor of its deliberations ..." (People v. Brown, 48 N.Y.2d 388, 393, 423 N.Y.S.2d 461, 399 N.E.2d 51 (1979)). More than twenty years ago the Court of Appeals in People v. De Lucia, 15 N.Y.2d 294, 296, 258 N.Y.S.2d 377, 206 N.E.2d 324 (1965), cert. denied, 382 U.S. 821, 86 S.Ct. 50, 15 L.Ed.2d 67 (1965), on reargument 20 N.Y.2d 275, 282 N.Y.S.2d 526, 229 N.E.2d 211 (1967), stated: "... It has long been familiar law that jurors may not impeach their own duly rendered verdict by statements or testimony averring their own misconduct within or without the juryroom [sic]; much less can they do so by statements presented in the form of hearsay affidavits (People v. Sprague, 217 N.Y. 373, 111 N.E. 1077; Dalrymple v. Williams, 63 N.Y. 361; Fisch, New York Evidence, § 305; Richardson, Evidence (8th ed.), § 423). The rule is founded on sound public policy (Payne v. Burke, 236 App.Div. 527 ) ..." [material in brackets added].

The rare exception to this general rule occurs when the jury's deliberation is affected by an outside or improper influence (e.g. Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966), where the jurors could impeach the verdict, on the basis of an improper communication from a bailiff, who was the outside influence; People v. Brown, cited supra, where a juror performed an experiment on her own and reported the results to the jury, and, this contrived experiment was deemed an improper influence; People v. Crimmins, 26 N.Y.2d 319, 310 N.Y.S.2d 300, 258 N.E.2d 708 (1970), where the jurors made an unauthorized visit to the crime scene, and this visit was deemed an improper influence).

Our research fails to uncover a single appellate decision in this State that holds that an inquiry can be made into how jurors talk to each other in the jury room. Recently, the Court of Appeals, in the case of People v. Pickett, 61 N.Y.2d 773, 774, 473 N.Y.S.2d 157, 461 N.E.2d 294 (1984), held that: "... communications among the jurors that were a part of their deliberative process in attempting to reach a verdict on the issues they were charged to decide (including their efforts by permissible arguments on the merits to persuade each other) were secret and not to be disclosed ...".

Further, nothing before us would indicate that juror number six did anything that would frustrate defendant's right to a fair and impartial consideration of the facts before the jury (see, People v. Horney, 112 A.D.2d 841, 493 N.Y.S.2d 130 (1st Dept.1985), lv. to appeal denied 66 N.Y.2d 615, --- N.Y.S.2d ----, 485 N.E.2d 242 (1985); and, People v. Phillips, 87 Misc.2d 613, 384 N.Y.S.2d 906 (Sup.Ct.N.Y.Co., 1975), aff'd 52 A.D.2d 758, 384 N.Y.S.2d 715 (1st Dept.1976), lv. to appeal denied 39 N.Y.2d 949, 386 N.Y.S.2d 1039, 352 N.E.2d 894 (1976)).

Applying the legal authority cited supra to the instant allegation of juror misconduct, we find that there is an insufficient showing of either an outside or improper influence to justify a hearing, and we agree with the Trial Court's summary denial of the instant motion.

The dissent offers no relevant legal authority that stands for the proposition that a post-trial hearing should be held to inquire into whether a juror gave truthful answers on the voir dire, when the only evidence to justify such a hearing is the unsupported affidavit of a juror, who disputes what another juror allegedly said during deliberations. A holding to the contrary is fraught with many undesirable and obvious perils.

We find that the three cases most heavily relied upon by the dissent do not pertain to conversations between jurors during deliberations, which is the sole factual setting that we are confronted with herein. Thus, the case of People v. De Lucia, 20 N.Y.2d 275, 278, 282 N.Y.S.2d 526, 229 N.E.2d 211 (1967), involved outside influences on a jury, since the Court found "... In the instant case, it appears that several jurors not only went to the [crime] scene, but actually re-enacted the alleged crime ..." [material in brackets added]; the case of People v. Leonti, 262 N.Y. 256, 186 N.E. 693 (1933), involved a post-trial meeting outside the jury room between a juror and defense counsel and another attorney, and in that meeting the juror indicated that he was prejudiced against the defendant [Note: the facts in the case of People v. Leonti, are set forth in McHugh v. Jones, 258 App.Div. 111, 114, 16 N.Y.S.2d 332 (1939) ]; but this juror did not, as far as we can determine from these decisions, discuss with these attorneys what he said to his fellow jurors during deliberations; and the case of McHugh v. Jones, 258 App.Div. 111, 112, 16 N.Y.S.2d 332 (1939), aff'd 283 N.Y. 534, 29 N.E.2d 76 (1940), involved what a juror told other jurors "... during the trial and at recess ... [but not during deliberations] ..." [material in brackets].

We have examined the other point raised by the defendant, which alleges that he was not proven guilty beyond a reasonable doubt, and find it to be without merit.

All concur except CARRO and FEIN, JJ., who dissent in a memorandum by FEIN, J. as follows:

I respectfully dissent. I would hold the appeal in abeyance and remand the action for a hearing on defendant's motion to set aside the verdict on the basis of juror misconduct. I would limit the issue to the question of whether the juror, during the voir dire, had stated in words or in substance that she had never been the victim of a robbery and whether that was the truth.

I have no quarrel with the cases cited in the majority opinion to the effect that a jury verdict may not be impeached by inquiry into the tenor of the jury's deliberations. I agree that there should not be a hearing on this record as to how the jurors talked to each other in the jury room. However, none of the cases cited holds that where sufficient ground is shown, a hearing is not required to inquire whether a false statement was made by a prospective juror during voir dire as to a matter upon which a challenge for cause or a peremptory challenge might be founded, and I know of no cases so holding.

In People v. Pauley, 281 App.Div. 223, 119 N.Y.S.2d 152, a juror, upon voir dire, falsely denied any acquaintance with a member of the police force and denied ever having had a direct interest of any kind in a criminal prosecution. The court stated the applicable principle at p. 226, 119 N.Y.S.2d 152:

The answers given by the juror upon the voir dire examination were misleading, evasive and false. Whether she had some ulterior motive for concealing her true status and past experience is of no moment. The fact remains that she was permitted to sit as a juror upon the faith of her answers. The defendants were entitled to a full and fair disclosure of the facts without which they could not determine whether to accept or reject her. * * * It was not necessary for the defendants to show that the juror's conduct upon her examination and during the trial influenced the verdict. If it was likely to do so, it was sufficient to warrant the granting of the motion. (Payne v. Burke, 236 App.Div. 527 .) The juror was unfit to sit. The rights of the defendants were prejudiced by the false answers and concealment of facts. They were entitled to a trial by a jury above suspicion of prejudice and coercion. (Clark v. United States, 289 U.S. 1 [53 S.Ct. 465, 77 L.Ed. 993]; People v. Leonti, 262 N.Y. 256 ; People v. Bishop, 66 App.Div. 415.)

The principle is restated in People v. Horney, 112 A.D.2d 841, 493 N.Y.S.2d 130, relied on by the majority. As this court noted in that case, "the court correctly directed that a hearing be held...