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People v. Samandarov

November 24, 2009

THE PEOPLE &C., RESPONDENT,
v.
SIMON SAMANDAROV, APPELLANT.



The opinion of the court was delivered by: Smith, J.

This opinion is uncorrected and subject to revision before publication in the New York Reports.

We hold that Supreme Court acted within its discretion in denying without a hearing defendant's post-trial motions alleging juror misconduct and a Rosario violation.

I.

Defendant was convicted of attempted murder, second degree assault and weapons offenses based on the shooting of Alik Pinhasov. The key witnesses at trial were Pinhasov and Jose Ramirez. Pinhasov testified that defendant shot him. Ramirez, who lived across the street from the place where the shooting occurred, testified that he heard gunshots, looked out his window and saw a man on the ground and another man -- who, from Ramirez's description, was apparently defendant -- holding a gun. The People also proved that the gun used to shoot Pinhasov was recovered from defendant's pocket minutes after the shooting.

Several weeks after the verdict, defendant moved to set it aside pursuant to CPL 330.30 (2), on the ground of "improper conduct on the part of a member of the jury." Supreme Court denied the motion without a hearing, and pronounced sentence. Six months later, defendant moved pursuant to CPL 440.10 to vacate his conviction on the ground that the People had violated their duty under People v Rosario (9 NY2d 286 [1961]) by failing to turn over to defendant statements made by Ramirez to the police before trial. Supreme Court denied this motion too without a hearing. The Appellate Division affirmed defendant's conviction and sentence, and the denial of his CPL 440 motion (People v Samandarov 56 AD3d 575 [2008]). A Judge of this court granted leave to appeal.

We review the decisions to deny hearings on both the CPL 330 and the CPL 440 motions for abuse of discretion (People v Friedgood, 58 NY2d 467, 470 [1983]). We conclude that discretion was not abused, and we affirm.

II.

The basis for defendant's CPL 330 motion was an affidavit of his counsel, which in turn relied on a newspaper article and on information given to counsel by an unnamed "neighbor" said to be a "coworker" of the foreperson of the jury.

The newspaper article mentioned in the CPL 330 motion appeared in the New York Daily News a few days after the verdict. It suggested that there was a connection between the shooting of Pinhasov and the later murder of Pinhasov's cousin, Eduard Nektalov, who was, according to the newspaper article, "executed in broad daylight" eight months before defendant's trial. Defendant's appellate brief also relies on another newspaper article, not cited in his CPL 330 motion, that appeared in the New York Times during the trial; that article said the Pinhasov shooting "has links" to the Nektalov murder. The Times article was not mentioned on the record at trial, but the judge may have had some warning of it: on the day before the article appeared, he said to the jurors, "I want to once again emphasize in the strongest possible terms that you are not to read about the case in tomorrow's newspapers." There is no evidence that any juror disobeyed that instruction. Nektalov's name came up only once at the trial, when a police officer testified that Nektalov served as a translator at the officer's interview with Pinhasov.

The Daily News article that appeared after the verdict reported that, though the Nektalov murder had not been mentioned at trial, "jurors said they were aware there may have been a link and that those involved . . . may have ties to mob activities." It quoted a juror as saying "Of course we were aware of it . . . and worried about it . . . . I was looking out [in the audience] thinking 'Gee, they can see all of our faces.'" According to counsel's affidavit in support of the CPL 330 motion, counsel "confirmed" with the Daily News reporter that the article was accurate and that the juror quoted was the foreperson. Counsel also said his neighbor had told him that the jury foreperson "had discussed her jury experience with her fellow employees and again acknowledged that the jury talked about defendant's involvement with the Russian Mob throughout the trial and that the jury was preoccupied with this issue during the course of the trial." No affidavit was submitted from either the neighbor or the jury foreperson.

Even putting aside the hearsay nature of this evidence, Supreme Court was justified in ruling that defendant did not submit enough proof of juror misconduct to warrant a hearing. Defendant submitted nothing to show that jurors had received from outside the courtroom any information about the Nektalov murder or any other alleged "Russian Mob" activities. The evidence showed at best that jurors had speculated among themselves that the case had "Russian Mob" connections -- and the nature of the case almost invited that sort of speculation. Indeed, the danger was so obvious that defendant chose to bring it up in voir dire, mentioning a possible "perception" that "if you are a member of this group you must be involved in some sort of illegal activity" and asking if anyone had "problems or preconceived stereotypes in their minds concerning Russian-Americans." Defense counsel returned to the theme during trial, asking Pinhasov if he had any history of "loan sharking" or "money laundering." Thus, if the jurors in this case did converse among themselves about the "Russian Mob," there is no reason to think that anything outside the courtroom prompted that conversation. Absent some "outside influence" on the jurors, this record provides no ground for impeaching their verdict (see Alford v Sventek, 53 NY2d 743, 744 [1981]).

III.

Ramirez, whose testimony placed a gun in defendant's hand immediately after the shooting, was asked on cross examination if anyone had interviewed him before trial. He replied: "Just the officers that came up that night [i.e. the night of the shooting] and the district attorney that came to see me." Notes of the police interview on the night of the crime were turned over to the defense as Rosario material. In support of his CPL 440 motion, defendant tried to show that police officers had also taken part in one or two later interviews, and that a police officer had taken notes at those interviews that had not been turned over.

In support of his motion, defendant submitted an affidavit from Ramirez. The affidavit was typed, but contained handwritten insertions made by an investigator employed by defense counsel. The affidavit as typed says that "uniformed New York City Police Officers and two Detectives came to my apartment on two separate times and dates to conduct interviews." The handwritten insertions add the information that the police officers came "along with the District Attorney, Queens County" and say, at one point, that they came "a third time" (thus creating an apparent inconsistency in the ...


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