D. Futerfas, White Plains, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Judith R.
Sternberg and Laurie K. Gibbons of counsel), for respondent.
M. LEVENTHAL, J.P. JEFFREY A. COHEN HECTOR D. LASALLE BETSY
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Nassau
County (Carter, J.), rendered December 13, 2013, convicting
him of murder in the second degree, robbery in the first
degree (two counts), and robbery in the second degree, upon a
jury verdict, and imposing sentence.
that the judgment is reversed, on the law and in the exercise
of discretion, and a new trial is ordered.
the evidence in the light most favorable to the prosecution
(see People v Contes, 60 N.Y.2d 620, 621), we find
that it was legally sufficient to establish the
defendant's guilt of all charges of which he was
convicted beyond a reasonable doubt. Contrary to the
defendant's contention, the People produced corroborative
evidence sufficient to connect the defendant to the
commission of the offenses (see People v Reome, 15
N.Y.3d 188, 195; People v Paige, 134 A.D.3d 1048,
1051; People v Raysor, 130 A.D.3d 1079, 1079;
People v Cortez, 81 A.D.3d 742, 742-743; see
also People v Kimes, 37 A.D.3d 1, 14).
in fulfilling our responsibility to conduct an independent
review of the weight of the evidence (see CPL
470.15; People v Danielson, 9 N.Y.3d 342, 348),
we nevertheless accord great deference to the
factfinder's opportunity to view the witnesses, hear the
testimony, and observe demeanor (see People v Mateo,
2 N.Y.3d 383, 410; People v Bleakley, 69 N.Y.2d 490,
495). Upon reviewing the record here, we are satisfied that
the verdict of guilt of all counts was not against the weight
of the evidence (see People v Romero, 7 N.Y.3d 633).
reversal is required because the Supreme Court improperly
denied the defendant's post-verdict motion to set aside
the verdict based upon juror misconduct. Pursuant to CPL
330.30(2), 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, inter alia, upon the ground that "during the
trial there occurred, out of the presence of the court,
improper conduct by a juror, or improper conduct by another
person in relation to 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). Upon a hearing, "the defendant has the
burden of proving by a preponderance of the evidence every
fact essential to support the motion" (CPL
preponderance of the evidence adduced at the hearing
conducted on the defendant's motion to set aside the
verdict established that one of the jurors improperly shared
the views of her husband, who was a retired assistant
district attorney, by telling the other jurors that he told
her that everything the prosecutors said was true, that law
enforcement officers would not lie, that the accomplice could
never have come up with such an extravagant story in such a
limited amount of time, and that crime scene videos
didn't show everything. Moreover, the evidence
established that the juror's comments regarding her
husband's statements influenced one juror who testified
at the hearing. Additionally, another juror testified that
during deliberations she sent a text message to her uncle, a
retired police officer, and asked him if a nine millimeter
bullet could fit into a.40 caliber gun. Her uncle told her
"no, " and the following day she shared that
information with the jury. Although the Supreme Court found,
at the conclusion of the hearing, that juror misconduct had
occurred during deliberations, it determined that in view of
the nature of the outside information disseminated, the
defendant had not been prejudiced.
determining a motion to set aside a jury verdict based upon
juror misconduct, "the facts must be examined to
determine the nature of the material placed before the jury
and the likelihood that prejudice would be engendered"
(People v Brown, 48 N.Y.2d 388, 394; see People
v Maragh, 94 N.Y.2d 569, 573-574). Contrary to the
Supreme Court's determination, the material that was
improperly placed before the jury in this case created a
substantial risk of prejudice to the rights of the defendant
(see People v Giarletta, 72 A.D.3d 838; People v
Romano, 8 A.D.3d 503; People v Cepeda, 251
A.D.2d 343; People v Huntley, 87 A.D.2d 488,
affd 59 N.Y.2d 868; see also Parker v
Gladden, 385 U.S. 363; People v Maragh, 94
N.Y.2d 569). Accordingly, under the circumstances presented,
the court should have granted the defendant's motion to
set aside the jury verdict. Consequently, the judgment must
be reversed and a new trial ordered.
defendant's remaining contentions either are without
merit or need not be ...