People v. Smith
| Decision Date | 02 August 2022 |
| Docket Number | Ind. No. 00130-2016 |
| Citation | 172 N.Y.S.3d 593 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Russell SMITH, Defendant. |
| Court | New York Supreme Court |
For the People: ADA Alexandra Militano & ADA Christopher Conway, Bronx County District Attorney's Office
For Defendant: Mr. Andrew Multer, New York & Ms. Defne Ozgediz, Bronx Defenders
The Court of Appeals remitted this matter for a hearing on the defendant's motion to set aside verdict pursuant to CPL § 330.30 (2). After hearing the witness testimony, and upon careful consideration and review of the parties’ written submissions, documents contained in the court file, transcripts from court proceedings and relevant case law, the defendant's motion is DENIED .
The defendant was arrested on allegations of engaging in non-consensual sexual intercourse with the complainant who is related by blood. On September 23, 2016, following a jury trial in front of Justice Barbara Newman in Bronx County Supreme Court, Criminal Term, Part 24, the defendant was found guilty of one count of Rape in the First Degree under PL § 130.35 (1). The jury was polled once the verdict was announced. Everyone reported that this was their verdict. The defendant, who had been at liberty on bail, was remanded and the case was adjourned to October 13, 2016, for sentencing.
The instant motion to set aside verdict was filed off-calendar on October 12, 2016. The impetus for the motion came from defense counsel's conversation with an alternate juror, Mr. T.P.,1 about 75 minutes after the verdict was rendered (Defense Aff, 4 [Oct. 12, 2016]). Mr. T.P. initiated contact with defense counsel to inform them that he had spoken to two seated jurors, Jurors No.9 and #11, and had "grave misgivings about the manner in which th[e] deliberations were conducted" (id. ). He told defense counsel that Ms. A.N., Juror #11, informed him that "among other things, the jury had discussed Mr. Smith's decision not to testify in reaching their verdict, and that one juror had told the other jurors that she had supposedly seen Mr. Smith, who had been out on bail, jump the turnstile to enter the subway after the conclusion of the trial session on September 21, 2016" (id. ). According to Mr. T.P., and as relayed by defense counsel in their motion, another juror, believed to be Juror #9, informed Mr. T.P. that the prosecution failed to meet its burden to prove the charge beyond a reasonable doubt (id. ).
Ms. A.N. wrote an affidavit, which was attached to the defendant's motion to set aside the verdict. The affidavit was dated September 28, 2016. Ms. A.N. echoed what Mr. T.P. stated, and averred that the following took place during the deliberations:
a) The jurors openly discussed the fact that Mr. Smith chose not to testify as a factor in rendering their verdict; b) Several jurors simply refused to discuss the arguments that another juror and I raised during deliberations; c) Several jurors discussed their perceptions of Mr. Smith's demeanor in the courtroom; and d) During the deliberations, a juror reported that she had seen Mr. Smith jump a turnstile to enter the subway after the trial had concluded for the day.
(id. Exhibit A, 1-2). As with Mr. T.P., Ms. A.N. claimed that she was "deeply troubled by the fact that the jury was so biased, and so blatantly disregarded the Court's instructions in its deliberations, and [she] regret[s] having ‘caved in’ and agreed to find Mr. Smith guilty" (id. at 3). She asked the court to overturn the verdict. There was no affidavit from Juror #9 or Mr. T.P.
Based on the filing of this motion, the defendant was not sentenced and the case was adjourned for response and decision. The People's opposition was filed on November 9, 2016. Relying on ( People v. De Lucia, 20 N.Y.2d 275, 282 N.Y.S.2d 526, 229 N.E.2d 211 [1967] ) and ( People v. Friedgood, 58 N.Y.2d 467, 462 N.Y.S.2d 406, 448 N.E.2d 1317 [1983] ), inter alia , the People asserted that the defendant's claim rested on unfounded allegations of one sitting juror which must not be used to undermine the jury's verdict.
Because Justice Newman was scheduled to retire at the end of 2016, the motion was referred to Justice Robert Torres, then Supervising Justice of Bronx County Supreme Court, Criminal Term. On December 2, 2016, Justice Torres summarily denied the defendant's motion without a hearing.
Defense requested leave to reargue, which was granted, and a motion to reargue was filed on February 24, 2017. Once again, it was denied by Justice Torres without a hearing on April 21, 2017. The defendant was sentenced to 18 years of incarceration and 20 years of post-release supervision as a violent predicate felony offender on May 19, 2017.
A timely appeal was filed, and the appellate record was perfected on or about April 30, 2019. The case was heard by a First Department panel on November 14, 2019. One of the issues on appeal was the defendant's motion to set aside the verdict. By the decision issued on December 12, 2019, the Appellate Division held, ( People v. Smith , 178 A.D.3d 524, 524, 111 N.Y.S.3d 845 [2019] ).
On November 19, 2020, the Court of Appeals issued a unanimous decision reversing the Appellate Division after concluding that "the motion court abused its discretion in denying the defendant's CPL 330.30 (2) motion without first conducting a hearing" ( 35 N.Y.3d 1117, 134 N.Y.S.3d 1, 158 N.E.3d 892 [2020] ). The matter was remitted to Supreme Court.
Upon remission, the case was assigned to Justice Efrain Alvarado as Justice Torres had retired at the end of 2020. While the case was pending before Justice Alvarado, the parties held several status conferences in preparation for the hearing ordered by the Court of Appeals (hereinafter "330 hearing"). Furthermore, the defendant filed a motion seeking an order directing the Clerk of the Supreme Court to unseal the jury records pursuant to Judiciary Law § 509 (a). The motion was granted by the Appellate Division on September 28, 2021. The Clerk produced the juror information on or about October 7, 2021.
Sometime in late January 2022, the case was re-assigned to this Court following Justice Alvarado's retirement. An informal conference was held with the Court's attorney and attorneys from both sides on February 2, 2022. The procedural history, current posture and scheduling issues were reviewed. The case was placed on the Court's calendar on February 24, 2022 for a "final pre-hearing conference" at the parties’ request. Thereafter, the case was adjourned to April 25, 2022 for a 330 hearing. Prior to April 25, the Court signed several subpoenas ad testificandum at the defendant's request.
On April 18, 2022, defense counsel filed a motion to set aside the verdict without a hearing. They argued that it was not feasible to hold a constitutionally meaningful 330 hearing because the jurors could not remember the alleged juror misconduct due to the passage of time. As such, they maintained that the Court could not determine whether the defendant's right was affected by such misconduct. In the alternative, defense requested an evidentiary hearing regarding the practicability of holding a 330 hearing. Following oral opposition from the People on April 25, the Court ruled that the scope of the 330 hearing will be expanded to incorporate the defendant's argument.
Also, on April 25, 2022, Ms. A.N.’s absence was discussed. Defense counsel informed the Court that they last spoke to Ms. A.N. in November 2021 and she was reluctant to testify. Defense counsel detailed the measures that were taken to bring in the witness including obtaining a so-ordered subpoena from the Court, which was signed on April 18, 2022. Ultimately, according to defense counsel, Ms. A.N. cited work and childcare as reasons not to appear.
Being that Ms. A.N. is an essential witness for their case, defense counsel proposed several options, which included allowing the witness to testify virtually, accepting her affidavit from 2016, or issuing a material witness order. Alternatively, they asked the Court to speak to Ms. A.N. to appear voluntarily as directed by the subpoena. After hearing from both sides, the Court indicated its willingness to sign a material witness order. At the defendant's request, however, the Court instead signed an order to show cause for the following day and informed the parties that a material witness order would follow if the witness did not show up.
Nine witnesses testified on April 25, 2022. Three of the People's witnesses were taken out of turn with the consent of both parties for the witnesses’ convenience.
Ms. A.N. appeared and gave testimony on April 26, 2022. Although Mr. Smith was not produced by the State Department of Corrections on the day of Ms. A.N.’s testimony, he waived the right to be present after consulting with his attorneys given the difficulty with bringing in the witness. Mr. Smith was connected by counsel's cell phone and was able to hear Ms. A.N.’s testimony telephonically.
The Court heard from two additional witnesses on April 28 and May 23, 2022. After an oral argument from both sides, the case was adjourned for decision.
The Court heard from a total of twelve jurors, which included all of the sitting jurors except Juror # 1, who currently lives in the Dominican Republic, and Alternate Juror #1. Both sides agreed that these witnesses are unavailable and would likely provide cumulative testimony to the testifying jurors. The Court agrees.
Based on the witnesses’ testimony, the Court makes the following findings of fact.
Mr. D.M. testified as the People's witness on April...
To continue reading
Request your trial