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People v. Gee

Supreme Court, Bronx County

October 26, 2017

The People of the State of New York, Plaintiff,
v.
Dwayne Gee, Defendant.

          Megan West, Assistant District Attorney, Office of Darcel D. Clark, District Attorney

          Amalea Smirniotopoulos, Bronx Defenders, for the Defendant

          April A. Newbauer, J.

         This case illustrates the danger inherent in seating a juror who lives near the crime location. Such a juror may either recall more information about the area during the trial or acquire it inadvertently, and then offer it up to other members of the jury for their consideration during deliberations. On February 27, 2017, the defendant was convicted after a jury trial of criminal sale of a controlled substance in the third degree in violation of Penal Law section 220.39(1). On April 18, 2017, the defendant moved pursuant to Criminal Procedure Law §330.30 requesting that this court set aside or modify the verdict of the jury on various grounds, including juror misconduct. The People filed an affirmation in opposition, arguing that jurors are not permitted to impeach their own verdict unless there is a showing of improper influence on one or more jurors that may have prejudiced the defendant. However, the People consented to a limited hearing as to any prejudice resulting from the alleged conviction of one juror and a discussion among jurors of the convictions of another juror's brother and cousin.

         In a decision dated June 13, 2017, the court granted defendant's CPL §330.30 motion to the extent that a hearing was ordered to determine if there was an improper outside influence on any juror that may have resulted in prejudice to the defendant. See People v. DeLucia, 20 N.Y.2d 275 (1967); see also People v. Maranagh, 94 N.Y.2d 569 (2000). In addition to the two issues consented to by the People, the court expanded the hearing to include an inquiry into a third juror's alleged disclosure of personal insight regarding a barbershop that figured into the prosecution's theory of the case. Following the hearing in which eleven of twelve sworn jurors testified, the defendant's motion is granted.

         Procedural background

         During jury selection, after the prospective jurors took an oath but before the formal voir dire, the court posed some preliminary questions to the entire prospective jury panel. Outside the presence of the other prospective jurors, the judge and the parties had the opportunity to probe these issues further. No juror was excused at this stage, before a full voir dire, unless both sides consented and the court agreed there was good cause. Jurors were queried about prior contacts with the criminal justice system, including whether their family members had been convicted of a crime. Another such inquiry concerned knowledge of "the location" where the crime occurred, using the address where the alleged hand to hand drug sale took place.

         During the preliminary screening phase juror Jenkins, later seated, failed to respond to the question about family convictions. The defense motion alleges that Jenkins later disclosed to the jurors that when she was eleven years old, her brother was convicted of attempted murder and sentenced to prison. The defense contended that Jenkins used these facts to argue the defendant was guilty and should have "manned up" to his guilt. In addition, during preliminaries Parker-who was eventually also seated as a juror-disclosed that she lived in the immediate area of 597 East 138th Street, but claimed that she had no particular views about the neighborhood. She was not asked and did not come forward with information regarding any of the surrounding buildings, notably a barbershop. During the trial, the People's principal witness, an undercover officer, testified that the defendant and a separately apprehended individual ("JD Black")acted in concert in selling drugs. A second police witness, Detective Anderson, testified that after the hand-to-hand transaction, the defendant and JD Black parted ways from the undercover officer and from each other. According to the detective, JD Black walked into a barber shop near that location and exited shortly thereafter. Both the defendant and JD Black were arrested separately at different times and places, but prerecorded buy money the undercover used to purchase the drugs was not recovered. To explain why the money was missing, the People in summation asked the jurors to draw the reasonable inference from the facts presented that JD Black, who had just participated in selling drugs, did not want to keep the proceeds on his person and so went into the barbershop. The defense did not object to this argument.

         On February 27, 2017, the jury convicted the defendant of the top count, criminal sale of a controlled substance in the third degree, in violation of Penal Law section 220.39(1). The defense counsel requested that the jurors be polled individually. The jurors were asked if the verdict of guilty to the crime of criminal sale of a controlled substance in the third degree was their verdict. Each juror stated that it was. After the verdict was rendered and the record complete, the jurors were informed that they could speak with the attorneys or anyone else about the case if they wished.

         On April 17, 2017, the defendant filed a CPL § 330 motion alleging among other things, various forms of juror misconduct. The People consented to a limited hearing to the extent that a factual dispute was present with respect to two jurors' convictions, and as to the conviction history of Jenkins' brother and cousin.

         In a decision dated June 13, 2017, the court granted defendant's CPL §330.30 motion to the extent of ordering the hearing. The court framed the issues for the evidentiary phase of the hearing as the effect of the arrest history, if any, of jurors Jenkins and Winston [1]; the use of the conviction history of Jenkins' brother and cousin; and to what extent, if any, Parker's familiarity with the barber shop may have had an impact on the verdict.

         CPL § 330 hearing

         The hearing commenced on July 19, 2017 and concluded on September 29, 2017. The first two witnesses (Epstein and Braxton) were called by the defendant. Prior to the hearing, each of these two witnesses provided affidavits which was attached to the defendant's motion papers as Exhibits A and B. After these witnesses testified, the court, upon consultation and consent of the parties, determined that was necessary to call the remaining deliberating jurors because of allegations raised by the defense witnesses. The defense consented only as to Jenkins and Parker. The remaining jurors were subpoenaed by the court over the defense objection. All the jurors, with the exception of one, appeared and testified.

         Epstein

         Epstein was called as a witness by defense counsel; she testified that she met with the defense counsel a few weeks after the verdict and signed her affidavit in support of the defendant's motion. [2] Epstein indicated that she also wrote a letter about her experience that she contemplated sending to the court, and reviewed that letter before her testimony. While Epstein's in court testimony overall ranged from annoyingly self-reverential to improbably ...


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