People v. Morales

121 A.D.2d 240, 503 N.Y.S.2d 374, 1986 N.Y. App. Div. LEXIS 58235

Opinions

Judgment, Supreme Court, Bronx County (Ivan Warner, J.), rendered December 28, 1984, convicting defendant, after a jury trial, of the crimes of burglary in the second degree (Penal Law § 140.25 [2]) and robbery in the second degree (Penal Law § 160.10 [1], [2] [two counts]), adjudicating him a youthful offender, and sentencing him to two concurrent indeterminate terms of imprisonment of from 1⅓ to 4 years

*, is affirmed, without prejudice to defendant, if so advised, making a CPL article 440 motion.

At approximately 10:45 p.m. on September 7, 1983, the defendant, together with three other persons, broke into the apartment of 65-year-old Walter Brown (Mr. Brown), which was located at 1979 Daley Avenue in The Bronx. Once the defendant and his accomplices were in Mr. Brown’s apartment, they struck him in the ribs and robbed him of $237. Mr. Brown recognized the defendant as a tenant who lived in the building where this crime took place.

Promptly after these robbers left his apartment, Mr. Brown reported this crime to the police, who quickly arrested defendant.

Soon after the date of defendant’s conviction, but prior to the date of sentence, defendant’s counsel moved to set aside the verdict, based upon an allegation that juror number six had lied when she stated during voir dire that she had never been the victim of a crime. Moreover, the defense counsel contended that as a result of this lie the juror was selected as a member of the jury, and that, as a member of the jury, she allegedly used her experience as a crime victim to convince the other jurors to convict the defendant. In support of these allegations, defense counsel submitted an affidavit from juror number nine. The trial court denied the motion without a hearing. Defendant argues that the trial court erred.

It is the law in this State that "[generally, a jury verdict may not be impeached by proof of the tenor of its deliberations” (People v Brown, 48 NY2d 388, 393 [1979]). More than 20 years ago the Court of Appeals in People v De Lucia (15 NY2d 294, 296 [1965], cert denied 382 US 821 [1965], on rearg 20 NY2d 275 [1967]) stated: "It has long been familiar law that jurors may not impeach their own duly rendered verdict by statements or testimony averring their own misconduct within or without the juryroom [sic]; much less can they do so by statements presented in the form of hearsay affidavits (People v. Sprague, 217 N. Y. 373; Dalrymple v. Williams, 63 N. Y. 361; Fisch, New York Evidence, § 305; Richardson, Evidence [8th ed.], § 423). The rule is founded on sound public policy (Payne v. Burke, 236 App. Div. 527)”.

The rare exception to this general rule occurs when the jury’s deliberation is affected by an outside or improper influence (e.g., Parker v Gladden, 385 US 363 [1966], where the jurors could impeach the verdict on the basis of an improper communication from a bailiff, who was the outside influence; People v Brown, supra, where a juror performed an experiment on her own and reported the results to the jury, and this contrived experiment was deemed an improper influence; People v Crimmins, 26 NY2d 319 [1970], where the jurors made an unauthorized visit to the crime scene, and this visit was deemed an improper influence).

Our research fails to uncover a single appellate decision in this State that holds that an inquiry can be made into how jurors talk to each other in the jury room. Recently, the Court of Appeals, in the case of People v Pickett (61 NY2d 773, 774 [1984]), held that: "communications among the jurors that were a part of their deliberative process in attempting to reach a verdict on the issues they were charged to decide (including their efforts by permissible arguments on the merits to persuade each other) were secret and not to be disclosed”.

Further, nothing before us would indicate that juror number six did anything that would frustrate defendant’s right to a fair and impartial consideration of the facts before the jury (see, People v Horney, 112 AD2d 841 [1st Dept 1985], lv denied 66 NY2d 615 [1985]; People v Phillips, 87 Misc 2d 613 [Sup Ct NY County 1975], affd 52 AD2d 758 [1st Dept 1976], lv denied 39 NY2d 949 [1976]).

Applying the legal authority cited supra to the instant allegation of juror misconduct, we find that there is an insufficient showing of either an outside or improper influence to justify a hearing, and we agree with the trial court’s summary denial of the instant motion.

The dissent offers no relevant legal authority that stands for the proposition that a posttrial hearing should be held to inquire into whether a juror gave truthful answers on the voir dire, when the only evidence to justify such a hearing is the unsupported affidavit of a juror who disputes what another juror allegedly said during deliberations. A holding to the contrary is fraught with many undesirable and obvious perils.

We find that the three cases most heavily relied upon by the dissent do not pertain to conversations between jurors during deliberations, which is the sole factual setting that we are confronted with herein. Thus, the case of People v De Lucia (20 NY2d 275, 279, supra) involved outside influences on a jury, since the court found "In the instant case, it appears that several jurors not only went to the [crime] scene, but actually re-enacted the alleged crime”; the case of People v Leonti (262 NY 256 [1933]) involved a posttrial meeting outside the jury room between a juror and defense counsel and another attorney, and in that meeting the juror indicated that he was prejudiced against the defendant (note: the facts in the case of People v Leonti are set forth in McHugh v Jones, 258 App Div 111, 114 [1939]), but this juror did not, as far as we can determine from these decisions, discuss with these attorneys what he said to his fellow jurors during deliberations; and the case of McHugh v Jones (258 App Div 111, 112 supra, affd 283 NY 534 [1940]) involved what a juror told other jurors "during the trial and at recess — [but not during deliberations]”.

We have examined the other point raised by the defendant, which alleges that he was not proven guilty beyond a reasonable doubt, and find it to be without merit. Concur — Kupferman, J. P., Sullivan and Ross, JJ.

This sentence also covered a bail jumping charge, which was then pending against defendant under a separate indictment.