The opinion of the court was delivered by: Richard C. Giardino, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Defendant sought to have the verdicts of guilty after trial of Attempted Murder 2d., Assault 1st., and numerous other counts arising out of a shooting at a Schenectady diner on August 6th, 2006 set aside on three specific grounds under CPL 330.00 (2). That motion was denied in its entirety by previous decision of this Court finding no merit in Defendants arguments. However, another issue for consideration arose during the course of the motion practice on the 330.00 application.
In their memorandum opposing the Defendant's initial motion to set aside the verdict the People disclosed to the Court and opposing counsel a disturbing conversation with Juror # 6. The juror allegedly stated in a phone conversation with the Assistant District Attorney that: "I guess I based my [decision] on race". Juror #6 is a middle-aged white male. The Defendant is a young black male. Further portions of the original phone conversation and a second phone conversation between the Assistant District Attorney and the Juror are set forth below.
Based upon the disclosures of the District Attorney the Court ordered a hearing be held with regard to possible juror misconduct which was brought to light by the District Attorney's letter. The People opposed such a hearing since it was not based upon a sworn affidavit of the juror. See People v. Johnson, 54 AD3d 636, First Department, 2008, sworn allegations required to order a hearing under 330.30. People v. Camacho, 293 AD2d 876, 3d Dept. 2002. This Court believes that the letter memo of the District Attorney is equivalent to a sworn affidavit since the Assistant District Attorney is an officer of the Court. Notwithstanding the cases cited by the People the Court found this matter too important to dispose of without a hearing.
Following the verdict and after discharging the jury, the Court asked the jury to please wait to meet with the Court and the attorneys. The Court employs this practice to personally thank the jury and to allow counsel the opportunity to speak with the jurors. The Court has utilized this practice in over one hundred cases as a courtesy to the attorneys to allow them to obtain information on how jurors think and what may be useful in the future.
During this post-verdict discussion, the jurors replayed a video that was properly admitted at trial. Several jurors pointed out to the Court and the attorneys a certain few frames showing a light flash or a flame or a puff of smoke, described variously.
Defense Counsel sent an investigator to interview a number of jurors. Based upon his investigation defense filed a motion to set aside the verdict. Counsel provided the Court with five sworn statements from jurors and a sworn statement from the investigator relaying his conversation with another juror. In preparing her response the Assistant District Attorney contacted a number of the jurors, including Juror #6, and filed a letter memorandum in opposition of Defense motion.
The Assistant District Attorney reported two conversations with the juror which are summarized from her letter. The Assistant District Attorney reported to the Court that Juror # 6 allegedly stated to her that he guessed he "based his decision on race". The juror also rambled on about the "captivating beauty" of the Assistant District Attorney and the fact the she "was just like a real lawyer".
A few days later she called the juror back and explained she would be reporting his comments to the Court. He stated that he had "had a few drinks" before his first conversation with the District Attorney, and that he was "not a bigot". He added that he had worded his remarks wrong. He further stated "that he did not base his determination of guilt on race".
In a further, more bizarre remark, he allegedly stated that he had watched the October 15 presidential debate and he was "very impressed with (now President) Obama, noting that "he made McCain look bad". He again stated that he "didn't convict the defendant because he was black ".
The Court gave great weight to the representations of the Assistant District Attorney as an officer of the Court and commended her for reporting these questionable remarks.
The Court found there was sufficient cause to order a hearing solely with regard to Juror # 6's comments with about basing his decision on race. Without actual testimony under oath it would have been impossible to fully assess the Juror's remarks. However, it is clear that racial bias or prejudice has no place in a determination of guilt in a criminal jury trial. People v. Blyden, 55 NY2d. 73, and People v. Rukaj, 123 AD2d. 277.
A hearing was held on December 10, 2008 on the limited issue of Juror #6's remarks.
The hearing was to determine what if any role race played in reaching a verdict by Juror #6.
This Court would review the facts to determine if the motion to set aside the verdict should be granted either because of improper conduct by a juror outside of the presence of the Court affecting a substantial right of the Defendant (CPL 330.30 (2)) or because of any ground that would require reversal or modification as a matter of law on appeal (CPL 330.30 (1)).
The Assistant District Attorney affirmed that everything in her October 16, 2008 letter to the Court with regard to the ...