West, Assistant District Attorney, Office of Darcel D. Clark,
Smirniotopoulos, Bronx Defenders, for the Defendant
A. Newbauer, J.
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.
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.
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.
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.
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.
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.
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 ; 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.
§ 330 hearing
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.
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.  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