People v. Teitelbaum

• Decision Date: 15 August 1986
• Parties: The PEOPLE of the State of New York v. Steven TEITELBAUM, Jeffrey Starroff and Clark E. Smith, Defendants.
• Court: New York Supreme Court

Page 936

506 N.Y.S.2d 936

133 Misc.2d 392

The PEOPLE of the State of New York v. Steven TEITELBAUM, Jeffrey Starroff and Clark E. Smith, Defendants.

Supreme Court, Queens County Extraordinary Special and Trial Term.

Aug. 15, 1986.

Charles J. Hynes, Deputy Atty. Gen. and Sp. State Pros. by Cynthia Kean, Sp. Asst. Atty. Gen., Office of Sp. State Pros., New York City, for People.

Agulnick & Gogel by Barry W. Agulnick, New York City, for Steven teitelbaum.

Kliegerman & Friess by Ronald E. Kliegerman, New York City, for Jeffrey Starroff.

Richard Hartman, Little Neck, for Clark E. Smith; Thomas J. Klei, of counsel.

FELICE K. SHEA, Justice:

Defendants move pursuant to CPL 330.30 for an order setting aside the verdict against them and granting a new trial on the ground that a juror, by withholding relevant information during voir dire, engaged in conduct so improper and prejudicial that defendants were deprived of a fair trial.

On May 15, 1986, defendants, who are police officers, were found guilty of Bribe Receiving in the Second Degree and two counts of Official Misconduct. Defendants allege, and the prosecution concedes, that Juror No. 3, Lillian Feeley, did not reveal her affiliation with the Queens County District Attorney's Office during jury selection. The parties disagree as to whether Miss Feeley's failure to disclose requires nullification of the verdict.

Before the voir dire, Miss Feeley came up to the bench and talked off the record with the Court and the attorneys. During jury selection, the Court asked all prospective jurors whether they held paid or volunteer jobs with a law enforcement agency such as the District Attorney's office. The Court also took pedigree information from each prospective juror. The defense attorneys requested and were given permission to interview each juror on the panel individually out of the hearing of the other jurors.

Before and during the questioning by the Court and the attorneys, Miss Feeley said several times that she was a volunteer worker in a court watcher's program. She described the nature of her work, but she did not state that the program was sponsored by the District Attorney of Queens County. That information came to light in an interview conducted by an investigator hired by defendants and taped without Miss Feeley's knowledge. ¹

The Court conducted a hearing on July 23, 1986 at which testimony was taken from Miss Feeley and from Mr. Leo Meindl, Miss Feeley's supervisor in the court watcher's program. They were both credible witnesses who testified candidly and without substantial contradiction.

The hearing evidence shows that John J. Santucci, District Attorney of Queens, sponsors a court watcher's program that utilizes volunteers, many of whom are senior citizens, to monitor proceedings in the Criminal Court of Queens County. Miss Feeley applied to be a court watcher in January, 1986 as a result of a newspaper article describing the program. She worked each Thursday from 9:00 A.M. to 1:00 P.M. until May, 1986 when she started jury service. Her contact with the court watcher's program was exclusively with Mr. Leo Meindl, her supervisor, and she never met Mr. Santucci or any assistant district attorney in the course of her work.

Volunteers are given one page forms to fill out in which the Court's starting time, the time of lunch, the times of recesses and the time of adjournment are to be entered. The number of cases on the calendar, the number adjourned and the number of dispositions are also noted on the form and there is a space at the bottom for comments. Miss Feeley's comments, as summarized in reports kept by the court watcher's office, reveal no pro-prosecutorial bias. The monitors are instructed not to concern themselves with legal matters. The forms used by Miss Feeley, the handbook distributed to volunteers and Miss Feeley's court watcher identification card carried the name of John J. Santucci and his title of District Attorney.

The court watcher's program is operated by the community relations arm of the District Attorney's office. It has an office separate and on a different floor from the investigation and enforcement sections of the prosecutor's office. The role of the District Attorney is played down and the service that the volunteers are performing for the public is emphasized. Meetings for court watchers are held periodically, but Miss Feeley attended no meetings during the months of her service in the program.

The Court's authority to set aside a verdict is governed by CPL § 330.30 which provides in pertinent part:

"At any time after rendition of a verdict of guilty and before sentence, the court may, upon motion of the defendant set aside or modify the verdict or any part thereof upon the following grounds

* * *

* * *

"2. That during the trial there occurred, out of the presence of the court, improper conduct by 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 ... ²

The statute, as drafted, is directed at improper conduct by a juror "out of the presence of the court". Here, the failure by a juror to state her affiliation with the District Attorney occurred during voir dire in the presence of the presiding judge and all counsel. Neither party has addressed this barrier to the defense motion and the case law appears to ignore it as well (see, e.g., People v. Albright, 104 A.D.2d 508, 479 N.Y.S.2d 892, reversed on other grounds, 65 N.Y.2d 666, 491 N.Y.S.2d 614, 481 N.E.2d 246) perhaps because there is an overriding constitutional right to an impartial jury and a fair trial. U.S. Constitution, Sixth and Fourteenth Amendments; N.Y. State Constitution, Art. 1, Sec. 6; People v. Harding, 44 A.D.2d 800, 355 N.Y.S.2d 394.

There are but a handful of cases challenging a verdict on the ground that a juror failed to disclose information at voir dire. The tests for determining when such an alleged impropriety affects a substantial right of a defendant are ill-defined.

A juror's concealment of his prejudice against persons of the defendant's national origin mandated a new trial in PEOPLE V. LEONTI, 262 N.Y. 256, 186 N.E. 693³. In People v. Howard, 66 A.D.2d 670, 411 N.Y.S.2d 15, a new trial of a gambling charge was ordered when a post-trial hearing revealed that a juror had been working with the District Attorney's office in the investigation of gambling and the juror had become an informer because he needed police protection from bookmakers to whom he owed money. In People v. Harding, 44 A.D.2d 800, 355 N.Y.S.2d 394, a new trial was required when a juror concealed the fact that he knew defendant and harbored a grievance against him because the defenda had "run around" with the juror's wife. The Fourth Department found that a new trial should have been ordered for a police officer defendant when a juror gave false answers on voir dire and concealed her marriage and litigation with a policeman. People v. Pauley, 281 App.Div. 223, 119 N.Y.S.2d 152 (dictum).

On the other hand, on facts more similar to the case at bar, two cases found the right of a defendant to a fair trial unaffected by the failure of a juror to disclose that he had been a member of the auxiliary police force. People v. Childs, 56 Misc.2d 581, 289 N.Y.S.2d 922; People v. Winship, 2 A.D.2d 952, 156 N.Y.S.2d 684, aff'd, 2 N.Y.2d 944, 162 N.Y.S.2d 39, 142 N.E.2d 212. In a recent case, two jurors failed to disclose details of an employment relationship between defendant's employer and a member of the two jurors' families. The Court held that no substantial right of the defendant was violated. People v. Albright, 104 A.D.2d 508, 479 N.Y.S.2d 892, reversed on other grounds, 65 N.Y.2d 666, 491 N.Y.S.2d 614, 481 N.E.2d 246.

In determining whether a substantial right of the defendant has been affected, judicial attention has focussed on whether the new information, if timely divulged, would have formed the basis for a peremptory defense challenge and/or a challenge for cause. See e.g., People v. Morales, 121 A.D.2d 240, 243, 503 N.Y.S.2d 374 (First Dept.) (dissent); People v. Howard, 66 A.D.2d 670, 411 N.Y.S.2d 15. Since a peremptory challenge is an objection for which no reason need be assigned (CPL § 270.25(1)), recognizing a right to invalidate the verdict because information withheld may have impelled a defendant to exercise a peremptory challenge is to permit post-conviction claims which are difficult to evaluate.

A more helpful standard for determining when a defendant's rights have been compromised by a juror's omissions at voir dire is to inquire whether, upon the facts uncovered, denial of a challenge for cause would have been error. CPL § 270.20(1)(b) allows a challenge for cause where a juror "has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at trial ..." It is an accepted principle that before trial it is wise for a trial judge to err on the side of disqualification since "the worst the court will have done ... is to have replaced one impartial juror with another impartial juror." People v. Culhane, 33 N.Y.2d 90, 108, n. 3, 350 N.Y.S.2d 381, 305 N.E.2d 469; accord : People v. Torpey, 63 N.Y.2d 361, 369, 482 N.Y.S.2d 448, 472 N.E.2d 298, motion for reargument denied, 64 N.Y.2d 885, 487 N.Y.S.2d 1029, 476 N.E.2d 1008; People v. Blyden, 55 N.Y.2d 73, 78, 447 N.Y.S.2d 886, 432 N.E.2d 758; People v. Branch, 46 N.Y.2d 645, 651-52, 415 N.Y.S.2d 985, 389 N.E.2d 467. In looking back after a verdict has been rendered, the trial judge should carefully assess whether the new facts foster a belief that it is likely the juror did not deliberate impartially. A jury verdict should be set aside only for compelling reasons. McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300; People v. Phillips, 87 Misc.2d 613, 631, 384 N.Y.S.2d 906, aff'd, 52 A.D.2d 758, 384 N.Y.S.2d 715, leave to appeal...