People v. Neulander

• Decision Date: 29 June 2018
• Docket Number: 1207,16–02210
• Citation: 80 N.Y.S.3d 791,162 A.D.3d 1763
• Parties: The PEOPLE of the State of New York, Respondent, v. M. Robert NEULANDER, Defendant–Appellant. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

162 A.D.3d 1763

80 N.Y.S.3d 791

The PEOPLE of the State of New York, Respondent,

v.M. Robert NEULANDER, Defendant–Appellant. (Appeal No. 1.)

1207

16–02210

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

Entered: June 29, 2018

SHAPIRO ARATO LLP, NEW YORK CITY (ALEXANDRA A.E. SHAPIRO OF COUNSEL), FOR DEFENDANT–APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, CARNI, CURRAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is reversed on the law and a new trial is granted.

Memorandum: These consolidated appeals arise from the death of defendant's wife in 2012. In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree ( Penal Law § 125.25 [1 ] ) and tampering with physical evidence (§ 215.40 [2] ). In appeal No. 2, defendant appeals from an order denying his CPL article 440 motion to vacate the judgment of conviction.

In appeal No. 1, defendant contends that the conviction is not supported by legally sufficient evidence and that the verdict is contrary to the weight of the evidence with respect to both counts. "Inasmuch as defendant made only a general motion for a trial order of dismissal [with respect to the murder count], he failed to preserve for our review his challenge to the legal sufficiency of the evidence" with respect to that count ( People v. Taylor, 136 A.D.3d 1331, 1332, 24 N.Y.S.3d 820 [4th Dept 2016], lv . denied 27 N.Y.3d 1075, 38 N.Y.S.3d 846, 60 N.E.3d 1212 [2016] ; see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). In any event, we conclude that defendant's contention lacks merit with respect to both counts. "It is well settled that, even in circumstantial evidence cases, the standard for appellate review of legal sufficiency issues is whether any valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the [jury] on the basis of the evidence at trial, viewed in the light most favorable to the People" ( People v. Hines, 97 N.Y.2d 56, 62, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001], rearg denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 [2001] [internal quotation marks omitted]; see People v. Reed, 22 N.Y.3d 530, 534, 983 N.Y.S.2d 752, 6 N.E.3d 1108 [2014], rearg denied 23 N.Y.3d 1009, 992 N.Y.S.2d 770, 16 N.E.3d 1249 [2014] ; see generally People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).

Here, the evidence establishes that the victim died of a complex, comminuted skull fracture. The Medical Examiner testified at trial that he initially determined that the victim's death was the result of a fall in the shower. The Medical Examiner further testified, however, that he changed his opinion after reviewing the evidence and discussing the case with other pathologists and the prosecution, and that he now opined that the victim's death was a homicide. In addition, the prosecution introduced the testimony of several experts who opined that the victim's head injury was caused by multiple blows, and by more force than would be expected if the victim had simply fallen from a standing position in the shower. The prosecution further established that the victim sustained numerous other injuries that could not be explained by a simple fall, including bruises on her nose, fingers and arms and abrasions on both sides of her face. Also, the hallway and bedroom into which defendant admitted that he carried the victim contained numerous blood spatters on various surfaces and objects, including some spatters on a sloped ceiling over six feet above the ground.

The prosecution's experts opined that the evidence was consistent with the prosecution's theory of the case that defendant intentionally attacked the victim, hit her in the head several times with an unknown object, moved her body to the shower to make it appear that the injuries were caused by an accident that occurred at that location, and then woke his daughter so that she could observe him moving the victim's body back to her bedroom. The prosecution also introduced evidence establishing that defendant disposed of an item of clothing that he was wearing at the time of the incident and several pieces of bedding, which, along with the evidence that defendant moved the victim's body, supported the inference that defendant was acting to conceal evidence of the crime. We conclude that, viewing the evidence in the light most favorable to the People, there is a "valid line of reasoning and permissible inferences [that] could lead a rational person to the conclusion reached by the [factfinder] on the basis of the evidence at trial" ( People v. Williams, 84 N.Y.2d 925, 926, 620 N.Y.S.2d 811, 644 N.E.2d 1367 [1994] ; see Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), and thus that the evidence is legally sufficient with respect to both counts of the indictment (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).

Furthermore, viewing the evidence in light of the elements of the crimes as charged to the jury (see Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we reject defendant's contention in appeal No. 1 that the verdict is against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). "Even assuming, arguendo, that a different verdict would not have been unreasonable, [we note that] ‘the jury was in the best position to assess the credibility of the witnesses and, on this record, it cannot be said that the jury failed to give the evidence the weight it should be accorded’ " ( People v. Chelley, 121 A.D.3d 1505, 1506, 993 N.Y.S.2d 597 [4th Dept. 2014], lv denied 24 N.Y.3d 1218, 4 N.Y.S.3d 606, 28 N.E.3d 42 [2015], reconsideration denied 25 N.Y.3d 1070, 12 N.Y.S.3d 622, 34 N.E.3d 373 [2015] ). Contrary to defendant's contention, the testimony of his experts, who opined that the evidence was consistent with the defense theory that the victim accidentally slipped and fell in the shower, does not require a different result. "The jury was presented with conflicting expert testimony regarding the cause of death, and the record supports its decision to credit the People's expert testimony" ( People v. Fields, 16 A.D.3d 142, 142, 789 N.Y.S.2d 888 [1st Dept. 2005], lv denied 4 N.Y.3d 886, 798 N.Y.S.2d 731, 831 N.E.2d 976 [2005] ; see People v. Pratcher, 134 A.D.3d 1522, 1525, 22 N.Y.S.3d 757 [4th Dept. 2015], lv. denied 27 N.Y.3d 1154, 39 N.Y.S.3d 388, 62 N.E.3d 128 [2016] ; see generally People v. Miller, 91 N.Y.2d 372, 380, 670 N.Y.S.2d 978, 694 N.E.2d 61 [1998] ).

Defendant further contends in appeal No. 1 that the court abused its discretion in denying his motion to set aside the verdict pursuant to CPL 330.30(2) based on allegations of juror misconduct. We agree with defendant, and we therefore reverse the judgment in appeal No. 1, grant the motion and grant a new trial.

CPL 330.30(2) provides that a verdict may be set aside 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" (emphasis added). Upon a hearing pursuant to CPL 330.30, "the defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion" ( CPL 330.40[2][g] ). When determining a motion to set aside a jury verdict based upon juror misconduct, "the facts must be examined to determine ... the likelihood that prejudice would be engendered" ( People v. Brown, 48 N.Y.2d 388, 394, 423 N.Y.S.2d 461, 399 N.E.2d 51 [1979] ; see People v. Maragh, 94 N.Y.2d 569, 573–574, 708 N.Y.S.2d 44, 729 N.E.2d 701 [2000] ). Thus, similar to the statutory language in CPL 210.35(5) with respect to a motion to dismiss an indictment based upon a defect in the grand jury proceedings (see People v. Huston, 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 [1996] ; People v. Sayavong, 83 N.Y.2d 702, 709–711, 613 N.Y.S.2d 343, 635 N.E.2d 1213 [1994] ), the plain language of CPL 330.30(2) does not require a defendant to establish actual prejudice.

We begin by noting that, at the hearing on the CPL 330.30 motion, defendant established that during the trial juror number 12 engaged in text messaging with third parties about the trial. Indeed, after being selected to serve on the jury, juror number 12 received a text message from her father that stated: "Make sure he's guilty!" During the trial, juror number 12 received a text message from a friend asking if she had seen the "scary person" yet. Juror number 12 responded: "I've seen him since day 1." Juror number 12 admitted at the subsequent hearing into her misconduct that she knew that the moniker "scary person" was a reference to defendant. Another friend sent juror number 12 a text message during the trial that stated: "I'm so anxious to hear someone testify against Jenna [defendant's daughter]." Juror number 12 responded: "No one will testify against her! The prosecution has already given all of his witnesses, we are on the defense side now! The prosecutor can cross examine her once she is done testifying for the defense." Later that night, the same friend replied via text message: "My mind is blown that the daughter [Jenna] isn't a suspect." Although instructed by the court numerous times to report any such communication to the court, juror number 12 repeatedly failed to do so.

After the verdict, a discharged alternate juror reported to defense counsel that juror number 12 had engaged in prohibited communications during the trial. Defendant moved pursuant to CPL 330.30(2) to set aside the verdict on the ground of juror misconduct that...