Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), rendered March 14, 2011.
Appellate Division, Fourth Department
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 Official Reports.
Decided on December 23, 2011
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND LINDLEY, JJ.
The judgment convicted defendant, upon a jury verdict, of sexual abuse in the second degree, course of sexual conduct against a
child in the second degree and endangering the welfare of a child.
It is hereby ORDERED that the judgment so appealed from is reversed on the law and a new trial is granted.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, sexual abuse in the second degree (Penal Law § 130.60 ) and course of sexual conduct against a child in the second degree (§ 130.80  [b]). We agree with defendant that County Court erred in denying his motion to set aside the verdict based on juror misconduct.
CPL 330.30 provides in relevant part that a court may, upon motion of the defendant, set aside a verdict on the ground 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" (CPL 330.30 ). As a general rule, "a jury verdict may not be impeached by probes into the jury's deliberative process; however, a showing of improper influence provides a necessary and narrow exception to the general proposition" (People v Maragh, 94 NY2d 569, 573; see People v Brown, 48 NY2d 388, 393; People v Scerbo, 59 AD3d 1066, 1068, lv denied 12 NY3d 821). Improper influence encompasses "even well-intentioned jury conduct which tends to put the jury in possession of evidence not introduced at trial" (Brown, 48 NY2d at 393).
"Of course, not every misstep by a juror rises to the inherently prejudicial level at which reversal is required automatically" (id. at 394). Rather, "[e]ach case must be examined on its unique facts to determine the nature of the misconduct and the likelihood that prejudice was engendered" (People v Clark, 81 NY2d 913, 914; see Scerbo, 59 AD3d at 1068). Juror misconduct constitutes reversible error where "(1) jurors conduct[ ] personal specialized assessments not within the common ken of juror experience and knowledge (2) concerning a material issue in the case, and (3) communicat[e] that expert opinion to the rest of the jury panel with the force of private, untested truth as though it were evidence" (Maragh, 94 NY2d at 574; see People v Santi, 3 NY3d 234, 249).
Here, the evidence at the post-trial hearing on defendant's CPL 330.30 motion established that two jurors interjected their professional knowledge into the jury deliberations by voicing professional opinions that were not the subject of expert testimony at trial (see Maragh, 94 NY2d at 575-576). The subject jurors -- a caseworker employed by a county department of social services (DSS) with a bachelor's degree in social work and a licensed substance abuse counselor with a bachelor's degree in human services -- conveyed to the rest of the jury panel that they had professional experience working with or counseling child victims of sexual abuse. According to the two jurors who testified at the hearing concerning the subject jurors, the DSS caseworker advised the jury that she worked in a child protective capacity. One of the testifying jurors recalled that, when members of the jury voiced concerns about the victim's credibility based upon, inter alia, her inability to recall dates or details about the sexual abuse, the delay in reporting, and the victim's failure to avoid defendant, the subject jurors made statements to the effect that "we deal with this every day," and "this is the pattern of how these things normally take place." That juror explained that "it was a lot like [the subject jurors] were testifying in the jury room," and he expressly testified that he was swayed by the opinions of the subject jurors in voting to convict defendant. The other testifying juror similarly recalled that, when members of the jury questioned the victim's credibility, the subject jurors responded, "that is how a sexually abused victim would act and that's normal behavior." She testified that the subject jurors said that it was "normal" for sexual abuse victims to "block . . . out" the abuse and that, as a result, "they wouldn't be able to remember" specific dates, times and places. According to that juror, one of the subject jurors went so far as to tell the jury that, when he had worked with child victims of sexual abuse, "this is how they would act." The juror testified that she changed her vote from acquittal to conviction based on the opinions of the subject jurors.
In denying defendant's CPL 330.30 motion, the court erred in concluding that it was "common knowledge" that victims of sexual abuse may both delay reporting and be unable to recall specifics of the abuse. The behavior and response of a victim of sexual abuse is "not within the common ken of juror experience and knowledge" (Maragh, 94 NY2d at 574; see People v Taylor, 75 NY2d 277, 289). Indeed, it is not uncommon for courts to permit expert testimony on precisely the subject at issue here, i.e., the behavior of a victim of sexual abuse (see e.g. People v Carroll, 95 NY2d 375, 387; Taylor, 75 NY2d at 289; People v Torres, 78 AD3d 866; People v Gregory, 78 AD3d 1246, 1247, lv denied 16 NY3d 831; People v Wellman, 166 AD2d 302, lv denied 78 NY2d 958).
We thus agree with defendant that the subject jurors offered improper professional opinions that were not the subject of expert testimony and were not subject to cross-examination, thereby depriving defendant of a fair trial (see Maragh, 94 NY2d at 575-576; People v Stanley, 87 NY2d 1000, 1001-1002). Indeed, the subject juror comments in this case are particularly problematic because they stated not only that sexual abuse victims may delay reporting or be unable to recall specifics of the abuse, which may be the proper subject of expert testimony (see Gregory, 78 AD3d at 1247), but they also went a step further ...