INTRODUCTION

The procedural history of this matter has been fully set forth in the Court's July 7, 2006 Decision, in which the Court ordered a hearing to determine if juror misconduct, including predeliberation discussion of the evidence among jurors, and between jurors and alternate jurors, occurred. The decision to grant the hearing was based on the written statements of two jurors, J.W. and T.R.,^[FN1] who said in identical language, the jurors and alternates organized and recorded the testimony of each witness on a chalkboard, analyzed it, evaluated it and discussed the case on a daily basis. The Court concluded, "[t]hese claims, if true, reflect the type of outside influence that allows jurors to impeach their verdict" (Hayes, J. Decision, July 7, 2006 at 22; see also People v. Ordenana, 20 AD3d 39 [1st Dept. 2005]; People v. Marrero, 83 AD2d 565 [2d Dept. 1981]).

The hearing was conducted on September 12, 2006, November 9, 2006, November 17, 2006 and March 2, 2007. A total of ten witnesses testified at the hearing. The defense called six witnesses: three jurors, J.W., T.R. and T.B.; an alternate juror, O.H.; an investigator, Margaret Clemmons; and a spectator, A.C. The People called four witnesses: two jurors, D.L., and J.E., as well as Court Officer Bruce Knowles and Sergeant John Candela, both of whom supervised the security of the jury during the trial. Although not called as witnesses at the hearing, additional jurors were also interviewed. On September 12, 2006, the defense called two jurors, J.W. and T.R., and the defense investigator, Margaret Clemmons. The District Attorney called Court Officer Bruce Knowles. On November 9th, the testimony of Margaret Clemmons continued and, in addition, the District Attorney called one juror, D.L., and Sergeant John Candela.

On December 1, 2006, the Court granted the Parties an opportunity to interview all the remaining jurors and alternates, subject to limitations imposed by the Court. The Parties were allowed to interview all the jurors and alternates solely about the allegations which gave rise to the hearing. They could interview each juror or alternate separately from the others, but to minimize inconvenience to the jurors, the interviews were to be conducted jointly by representatives of the defense and prosecution. The interviews could be electronically recorded only with the permission of the interviewee.

The hearing continued on March 2, 2007. The People called a single witness, juror J.E. The defense called two witnesses, alternate juror O.H. and juror T.B. Audiotapes of interviews of additional jurors and an alternate were marked as exhibits. The Court has listened to these recordings. Because they are unsworn hearsay statements, the Court will not consider them in reaching its decision. However, they are completely consistent with the testimony of other jurors that there were no premature deliberations and no discussions whatsoever with any alternate juror about the case. Further, one juror, L.P., telephoned the Court to complain about being interviewed. She expressed dismay, and vowed never to serve as a juror again. [*2]

THE HEARING TESTIMONY

Later J.W. was asked:

, did you, the jury, deliberate in that you discussed the evidence and reached conclusions from opening statements throughout the trial or only after the Judge charged you during deliberations?

He answered:

Only after the Judge charged us in deliberations.

He also was asked the following questions and gave the following answers:

Would you please, , direct your attention to paragraph three of your statement? The first sentence of that paragraph states that each day throughout the duration of the trial while in the jury room we hashed out among ourselves all of the testimony that we heard that day, you see that?

Yes, sir.

When you signed this statement, did you believe that statement to be true?

When I signed it, I believe that she was Miss Clemons [sic] was talking about the after the judge had charged us.

Similarly, T.R. also admitted he was tired from working when he read and signed the statement and that he was not entirely familiar with the language used throughout the statement. He emphasized he did not prepare the statement and the words used throughout were not his own. In discussing whether the jurors discussed the testimony of each witness and the evidence on a daily basis, T.R. testified:

Q. Okay. Now, Mr. Santangelo just asked you about discussions that went on in the jury room about the evidence and about the witnesses and the credibility of witnesses. Do you remember all those questions?

A.Yes.

Q. Okay. And did those discussions occur during your deliberations or before your deliberations?

A.During our deliberations.

Q. Okay. But did you understand that Mr. Santangelo was asking you about before your deliberations?

A.Oh, okay.

Q.Okay what?

A.No.

Q.You understand that? [*5]

A.No.

Q.Do you understand when it says duration of the trial, does it mean deliberation of the trial, it means from the time the trial began?

A.From the time from the time the trial began, we was in the room discussing the case. When we were out of the room we never discussed the case at all.

Q.You mean when you were in the courtroom [sic] there was discussions about the case?

A.Yes.

Q. When you left the courtroom [sic] there was no discussion about the case?

A.No.

Q. Why was not?

And why was that?

We were told specifically not to discuss the case while we were outside.

Did you follow that instruction ?

A.Yes.

He also clarified this later in his testimony:

Q.She would correct them on it and say what? How would she correct them?

A.She would correct them, letting them know we're not allowed to really speak about the case unless we're all in the room together. When we are on the outside, don't speak about it, period.

Q.Okay. But when you're all in the room together, was that before deliberations or during deliberations?

A.During deliberations.

Q. , I'm going to have to ask you to look at this statement that you wrote you didn't write this statement, did you, the statement you were asked to sign?

A.No.

Q.You didn't write it, did you?

A.No.

Q.Who wrote the statement, do you know?

A.No.

Q.Did you use any of these words, or somebody else used these words?

A.Somebody else used the words. I didn't make nothing.

Q.Okay. So you didn't say, "each day throughout the duration of the trial," you didn't say that?

A.Uh-uh.

Q.Do you know what that means?

The Court: Indicating no by shaking his head.

Indicating no. Yes.

You don't understand?

I didn't understand. This is my first time being on jury duty.

We understand. Do you understand now that when we're discussing this with you, we're not talking about deliberations, we're distinguishing deliberations and duration of the trial meaning while the testimony is actually going on?

Yeah.

Okay. But your discussions went during deliberations, is that right? [*6]

Yes.

Are you clear about that now?

A.Yes.

Moreover, both J.W. and T.R. completely repudiated the allegation in the written statement that the alternate jurors had any involvement in discussions about the case.

J.W. testified:

Q.During the time you discussed the case prior to receiving it from the Judge and listening to the arguments of the lawyers, the alternates contributed to that ten percent or less, did they not?

A.No, sir, not really.

Q.You say not really?

A.They stayed quiet, the two alternates.

Q.No alternate spoke about the case in front of you?

A.No, sir.

T.R. testified:

Q. When did you start discussing the witnesses and the evidence with other jurors?

A.When we heard the whole entire case entirely.

Q.And did you ever discuss the witnesses and the evidence when the alternates were part of the jury?

A.No.

T.R. also testified:

Q.Now, when you signed the statement of April 19th, and you read paragraph four you have it in front of you? Look at the last two sentences. You said or signed a statement that said, we all, including the alternate jurors. Now, is there anything you didn't understand about "we all including the alternate jurors?

A.I thought you was talking about the main jurors, not the alternates.



The jurors also contradicted the allegations made in their written statements regarding the use of the chalkboard in the jury room before deliberations began. While the statement alleges "from the beginning of the trial and on a daily basis throughout the duration of the trial" the jurors used a large chalkboard, both J.W. and T.R. testified the chalkboard was never used prior to deliberations for anything related to the trial. J.W. testified there was a chalkboard in the jury room and other than being used to play games, the chalkboard was only used "during deliberations." He said:

The Court: At any time during the trial or the deliberations, either one, was a blackboard, a chalkboard used?

The Witness: Yes, sir, during deliberations.

Was it used during the deliberations or prior to deliberations?

During the deliberations.

What about when the alternates were present, was the chalkboard used while the alternates were still part of the jury?

No, sir.

You don't recall that?

I don't really recall. [*7]

The Court: Just a minute. You're saying it didn't happen?

The Witness: I don't remember like I said, we played somebody played tick-tack-toe on that board. Up until that point there was no evidence, no names written down on the chalkboard regarding the witnesses. That much I can say.

He further testified the jurors did not record conclusions or evidence on the chalkboard and leave the information on the chalkboard overnight. T.R. testified he does not recall the chalkboard being used before deliberations. He stated the chalkboard was used during deliberations to record the location of where the crime occurred and the scenery.

Finally, although the signed statements allege daily and significant breaches of the Court's admonitions, both jurors' sworn testimony reduced any breach to a minor, casual comment. Both jurors ultimately testified the only time the jurors talked about the case was when a juror made an off-hand comment. For instance, on direct examination, J.W. mentioned the jurors might have discussed the case 10% or less prior to deliberations. However, on cross-examination, he clarified that by the 10% or less estimate he meant the occasions when a juror made a brief comment about the case. He testified, "somebody would make a remark. You pretty much ignore it." He described these remarks as "basic muttering." T.R. also testified jurors may have made a comment about the case. They both agreed, however, any comment made was brief and immediately stopped by the foreperson of the jury, A.S., who reminded the jurors not to discuss the case.

These two witnesses were candid and cooperative on both direct and cross-examination. Their candor, intelligence and professionalism reflect very well on them and the positions they hold. The Court fully credits their testimony. They had excellent recall of their interaction with the jurors and what they observed in the jury room prior to deliberations. Each had numerous occasions to go into the jury room unannounced during the trial, prior to deliberations, to escort jurors to the Courtroom, take them for breaks or relay questions to the Court. Neither Officer heard anyone discussing the case when they entered the jury room unannounced. Officer Knowles did not see any chalk until deliberations, when the jurors asked him for chalk, which he brought to them. He never observed anything written on the blackboard during the trial prior to deliberations and credibly testified he would have reported to the Court if he saw anything that indicated premature discussions or deliberations.

Sergeant John Candela is a twenty-two year employee of the Unified Court System. He was in charge of Courtroom operations during the trial including security and attending to the jurors. He was Court Officer Knowles's supervisor, and he dealt with the jurors on a daily basis. He estimated he entered the jury room unannounced between ten and twenty times prior to [*8]deliberations. Although he had no specific recollection of a chalkboard being in the jury room, he was confident that if it was, and if anything was written on it, he would have made a mental note of it and brought it to the Court's attention. He also testified that on the ten to twenty times he entered the jury room unannounced he never heard jurors discussing the case.

Specifically, he denied ever telling juror J.W. that "the defendants did it." He said he never talked about a witness while near the park located next to the Courthouse. In fact, he said he never discussed the case or a witness with any other juror before deliberations. He also denied saying "at least it was fun today, they did it" on the way to the subway, the comments the spectator, A.C., attributes to him. He said he never heard that comment while walking to the subway as part of a group of jurors, and he would remember it if he had said it. In fact, he never took the train where A.C. said the group of jurors entered the subway and never took the train with J.W. and another juror identified by A.C.

D.L. had a good recollection of events during the trial and the interaction of the jurors. He remembered the alternates by name, with the exception of a female alternate released early in the trial. He testified he did not hear the alternates speaking about the case and said they were very quiet they barely spoke at all.

He also said that the off-handed comments about the "robotic-like" demeanor of a People's witness did not compromise his impartiality and that he reached his decision about each defendant after closing arguments, charge and deliberations.

He said he refused to sign the statement prepared by the defense investigator even though the investigator implied other jurors said it was accurate. In his view, it was 100% inaccurate.

Again, the question on direct:

Was there a chalk board in the jury room during the course of the trial?

Yes, there was.

And was it being used during the trial I'm going to ask you to separate in your mind deliberations from trial was the chalk board being used during the course of trial?

She answered, "Not to my memory at all."

She was asked about what jurors did in the jury room during the trial.

Q.Do you recall what, without telling us the substance of any conversation during deliberations, again, directing you to again during the course of the trial, what was the general activity in the jury room in between witnesses and at times when the jury was in the back in the jury room waiting for the next event?

A.Basically we played a lot of cards, not for money, and exchanged some intelligent chitchat, what people did, nothing of the nature of the case.

She did recall the chalkboard being used during deliberations. She was asked:

Was the chalk board used to draw conclusions and to discuss witnesses during deliberations, if you recall?

A.To the best of my knowledge, it might have been something to do with, you know, understanding the charges.



She was equally forthcoming on cross-examination. She testified as follows:

Did you normally speak to the women on the jury as opposed to the men of the jury?

No. I spoke to them equally. I mean, not concerning anything but

And in terms of playing cards, were you one of the card players?

Yes, practically everybody was, it was a way to just

You played? —

not talk about the trial.

And did you ever see any men on the jury or hear them talking about the case before deliberations started?

No.

Now, you don't recall whether the chalk board was used before deliberations, is that right?

I have no absolute memory of that, no.

O.H., an alternate juror, was a candid witness with a good recollection of pertinent events. He testified openly on both direct and cross-examination. The Court fully credits his testimony.

O.H. recalled that on three occasions before deliberations he heard a juror make a comment about a witness. Twice this occurred in the jury room and once during lunch with a number of other jurors. He described the jurors who did this. He said he believed that on one occasion the juror was a male Chinese-American who said, after a People's witness, a homeless man, testified that "he is the only guy who has been telling the truth" or "[s]omething like that." He also recalled a young, physically large African-American juror making a comment about another People's witness, a complainant, Mr. McCormack, that "he was nuts or crazy or something to that effect." O.H. said he did not recall any discussion by other jurors in response to those comments.

O.H.'s recollection about the third comment was that it occurred when five or six of the younger male jurors were having lunch together. Someone made a comment, the specifics of which O.H. did not remember. Another juror, T.B., said to the speaker words to the effect, "hold on, or wait a minute we are under rules here" and nothing else was said. The comment, according to O.H., lasted only seconds. He said he did not hear jurors engaged in discussions at any time but that regarding the lunch comment "it took more than one second, so there may have been two people. But I don't recall a conversation or a deliberation or anything of that nature." The Assistant District Attorney asked O.H. a final question:

As far as you were able to observe during the course if your service, did it appear to you as though all the jurors were following the Court's instructions not to deliberate or to make conclusions about the case? [*10]

That's correct.

The Court then inquired:

During the period, from beginning to end, that you were an alternate in this trial, did you ever voice your view to the others about any matter connected with this trial, other than, you know, commenting about the judge or something like that? Did you ever express a view as to the guilt or innocence of any of the defendants in this case?

No. Only about lawyers, making fun of lawyers, and talking about the Judge, and stuff like that.

The Court asked:

In your presence, did you ever see or hear any of the other alternates doing what I asked you? Again, I'm not talking about making a comment about the Judge or the lawyer or court and staff, but did you see any or hear any of the other alternates expressing a view about the guilt of non-guilt of any of the defendants in this case?

No. There was only one. There was only one alternate. There was two, one was excused the second half of the trial. And there was one who was extremely quiet and kept to himself and didn't say anything.

O.H.'s recollection about the use of a chalkboard was less certain but he had some recollection it was used by jurors to keep track of scores while playing cards during breaks in the trial. He never saw it used to record evidence or write things down about the evidence or draw conclusions about witnesses or anything of that nature.

T.B. was also a candid witness with a good recollection of relevant events. He testified openly on direct and cross-examination. The Court fully credits his testimony. [*11]

T.B. testified that sometimes two or three jurors would eat lunch together. He did not recall being the person who reminded another juror at a lunch not to talk about the case, an incident recalled by alternate O.H. He said once in a while there would be "veil [sic] references" and that "we all sort of put it down." Upon further questioning, he said by veil [sic] references he meant "furtive glances and things like that. But, it was never discussed. I think a lot of us, a lot of us gravitated towards [D.L.] because we felt safe being with an attorney because we felt it was a shield, not to tempt us to talk about it." He added that he never violated the rules even though it was tempting to do so. He said, referring to talking about the case, "it was very tempting, very tempting to discuss it but we did not." T.B.'s recollection regarding the chalkboard was that a board was used to pin evidence on during deliberations, not before. The final question asked of T.B. regarding the trial was:

So was it clear then that there were no discussions or conclusions drawn about the evidence during the trial but merely during deliberations?

Correct. [*12]

A.C.

At the hearing, A.C. was called by the defense. A.C. testified she is a writer, film producer and a textbook indexer. She testified she attended the trial for three afternoons to get ideas for a novel she was writing. A.C. claims that on February 14, 2006 she overheard four male jurors discussing the case while they were walking towards a subway station. She claims she overheard one juror say to the others, "did you see her face, she was so angry." She also claims she heard another juror say, "she looked like she wanted to hit him," and a third juror say, "at least it was fun today." While A.C. alleges the jurors continued talking about the case for approximately two blocks, she asserts she did not remember what was being said at that point because she blocked out the conversation. A.C. testified, "they were still talking. I didn't want to hear what they had to say. So, I don't recall it. That's all I can tell you." A.C. claims the last thing she heard was a juror say, "well, anyway, they did it."^[FN3] She did not hear anything that anyone said immediately prior to that comment.

A.C. waited to report this to the Court on March 22nd over five weeks after the conversation is alleged to have occurred on February 14th, and after she learned that two defendants would serve a mandatory sentence of fifteen years.^[FN4] When asked why she waited so long to report it, she testified she was unsure of what the consequences would be if she reported the incident. A.C. also testified that among her other jobs she had worked with attorneys in the past and had been involved in numerous legal matters, including suing the District Attorney of Los Angeles, Ford Motor Company, What-a-Burger and on two occasions, her landlady. She said, "I have sued people." The Court asked, "Okay. About how many times?" A.C. responded, "a lot." [*13]

FINDINGS OF FACT

An analysis of J.W. and T.R.'s testimony leads to the inescapable conclusion their identical, signed, written out-of-Court statements are not accurate regarding what occurred with regard to predeliberation discussions, the involvement of alternate jurors with regular jurors or the use of a chalkboard predeliberation. This conclusion is inescapable for the following reasons: First, no other juror or witness remotely supports the description of events contained in the written statements. As discussed and analyzed below, every other juror who testified denied these events occurred. Second, both J.W. and T.R. explained the circumstances under which they signed the statement and then repudiated its contents. Both J.W. and T.R. stated they were distracted and did not fully comprehend the meaning of certain words used in the document. The Court finds they were unsophisticated, of limited education, accommodating and thus easily led to say what they believed the investigator wanted them to say. However, under oath, in the formality of the Courtroom, they testified as accurately as they could. Understandably, they did not admit to consciously misspeaking in their extra-judicial statements. Confronted by their prior statement, each said they believed it true when it was signed and that it was true when they testified. In the Court's opinion, observing their demeanor while they testified, they were testifying truthfully and were uncomfortable about signing the out-of-court statement because they realized its contents were not correct. They did not want to admit they were careless, or inaccurate, or did not understand the language used when they signed the statements, but clearly and consistently in their testimony denied events occurred as described in the statements. Even J.W.'s testimony that less than 10% of the deliberations occurred before the charge was subsequently clarified by him on cross-examination to explain he meant that prior to the charge there were brief, occasional comments by jurors, not deliberations. Again, the Court finds that the inconsistencies between the written statements of these two jurors and their sworn testimony at the hearing stems from their lack of sophistication and education, the circumstances under which they signed the statements (meaning not in a formal setting or under oath) an understandable reluctance to acknowledge they did not understand the meaning of certain words used by the defense investigator, and confusion on their part, as well as a desire to accommodate the investigator. The Court further concludes that the foreperson and other jurors were very forceful in assuring the Court's admonitions were followed and that they would not have allowed the activities described in J.W.'s and T.R.'s statements to have occurred. J.W. also testified that any comment he heard did not affect his judgment and that he reached his final decision only after evaluating the evidence during deliberations. The Court asked him:

To your best memory did any statement, just predeliberations, before the deliberations began, did any statement, whether made by one of the regular jurors or an alternate juror in any way, in your judgment, any comment that might have been conveyed compromised your impartiality?

No, sir.

The Court: Did it color did any statement that anyone might have made before deliberations color your decision, or your perception, your ability to make a decision? [*14]

No.

The Court: And did you, , did you reach your final decision as to each defendant's guilt or non guilt of a particular charge only after you heard all the evidence, the arguments of the lawyers, my charge, and went through the deliberations?

Yes, sir.

Yes, sir.

T.R. said:

Were these decisions that you made decisions that you made during deliberation after the judge instructed you on the law?

Uh-huh.

Were they [sic] then that you made your decision?

Yes.

Okay. Did you listen to the judge's discussion the judge's charges?

Yes.

And did you ask for readback of certain witnesses' testimony?

Yes.

And during that readback, did you pay special attention?

Yes.

And what did you do after that readback when you went back into the jury room?

We all as a jury said we make the final decision on the case. [*15]

What occurred in this case is a good example of why comments of jurors after a verdict should be considered with caution. They may be inaccurate or misinterpreted, or the natural result of a person wanting to be accommodating to a losing party. The Court concludes this is what occurred with the out-of-Court statements by these two jurors. The statements were made out-of-Court, not under oath, under circumstances where the two jurors would not realize the importance of being accurate, where they would want to be congenial to the questioner, and where to some extent they answered without a full understanding of the language used and without the same kind of careful thinking they displayed when testifying. Therefore, the Court does not credit these statements, but instead credits each of their sworn testimony at the hearing that there were no predeliberation discussions of the case, that the chalkboard was not used prior to deliberations and that no aspect of the case was discussed with an alternate. Further, the Court finds that J.W.'s 10% or less estimate was actually a lot less and simply referred to the occasional off-hand remark of a juror.

This conclusion that the written statements are not accurate is supported not only by the analysis and evaluation of their sworn testimony, but is independently supported and compelled by the credited testimony of every other witness at the hearing, jurors, alternates and Court staff, with the exception of A.C., the non-juror spectator. The witnesses were consistent with each other that there was no improper discussion of the case, improper use of the chalkboard or any improper interaction with alternate jurors. At the hearing, no witness testified to any discussion with an alternate juror about the case in any fashion. The alternates were uniformly described as very quiet. While there was agreement among some witnesses that on occasion a juror would make a comment about a witness, attorney, the Judge or Court staff member, it is clear these comments were infrequent, brief and never amounted to anything remotely resembling a discussion of a trial issue. There was never a lengthy discussion, sifting of evidence or exchange of views in response to these comments. Most importantly, there was no evidence whatsoever any juror ever discussed anything about the case with an alternate juror. The record is clear this simply did not occur.

After careful examination of A.C.'s testimony, the Court rejects her testimony. The timing of her disclosures, her demeanor as a witness, past history of litigation and her concern about the possible sentences undermine her credibility, particularly where it is directly contradicted by more reliable evidence.

The Court is not persuaded by A.C.'s vague explanation for not communicating the alleged misconduct to the Court while the trial was still ongoing. A.C. is apparently litigious and familiar with the legal system. The Court believes A.C. was well aware of the seriousness of the case and the consequences of juror misconduct and would have promptly communicated her observations to the Court if they had occurred as she described. It is also telling that A.C decided to disclose the alleged juror misconduct only after she learned the defendants were convicted and two defendants faced what she believed was a mandatory sentence of fifteen years. The source of this misinformation is also unknown, because the person she attributes it to denies informing her of it.

Further, it is reasonable to conclude that her sympathy for the defendants caused her to embellish any comments she overheard or led her to take innocent comments out of context and attribute them to something relating to the case.

Moreover, A.C.'s account is contradicted by other more credible evidence. D.L., who she alleges said, "well, anyway, they did it," also testified at the hearing. D.L. credibly denied ever [*16]making the statement and denied ever engaging in any discussions about the case with other jurors while walking towards the subway station. D.L. is an attorney who understands the seriousness of misrepresenting facts while under oath. The Court credits his testimony and believes it is extremely unlikely he would jeopardize his license to practice law by testifying falsely, particularly knowing that if his denial was false, there would be other jurors who could testify to its being false. Further, D.L. is the individual another juror, T.B., described as the person other jurors wanted to be with because they felt he could keep them from violating the Court's admonitions. Finally, his thoughtful demeanor supported the conclusion he was testifying truthfully and accurately.

It may be impossible to determine A.C.'s true motivations for reporting these allegations to the Court. She may believe her report is accurate. However, for the foregoing reasons, the Court concludes A.C. is either mistaken about what she heard or is not being candid. In either case, given the credible, overwhelming evidence jurors did not prematurely discuss the case, the Court rejects A.C.'s testimony as unreliable.

The Court granted the defense request for a hearing, pursuant to CPL § 330.30(2) to determine if "improper conduct by a juror [occurred] which may have affected a substantial right of the defendant .^[FN5]

The general statement of the law regarding allegations of juror misconduct is that a juror is not permitted to impeach his/her own verdict. At common law, a juror was never considered competent to impeach his/her own verdict, whether by affidavit or through direct testimony (Vaise v. Delaval, 1 Term R.aa [K.B. 1785]; McDonald v. Pless, 238 US 264 [1915]; Payne v. Burke, 236 AD 527 [4th Dept. 1932]). Although there is still a substantial reluctance to permit jurors to impeach their verdicts, some limited exceptions have emerged.

Where a patent injustice to a defendant was present, [courts have] distinguished th[ose] case[s] on a philosophical ground, although the prohibited result, the impeachment of the verdict, remained. This was a recognition that the rule against jurors' impeachment of their verdict should not operate in every case. Where, as in the case of statements regarding juryroom deliberations, every verdict might be rendered suspect, and jurors might become subjected to continuous posttrial harassment, the public policy reasons for holding such statements inadmissible must ordinarily override possible injustice to a defendant, for here our jury system itself is at stake (People v. De Lucia, 20 NY2d 275, 279 [1967]).



Thus, courts have permitted a juror to impeach his/her own verdict where there was a mistake in recording or reporting the verdict (Dalrymple v. Williams, 63 NY 361 [1875]), where a juror intentionally concealed material facts and bias on voir dire (McHugh v. Jones, 258 AD 111 [2d Dept 1939], aff'd 283 NY 534 [1940]), or where improper extraneous information or outside influence intruded upon the jury's deliberations (People v. De Lucia, 20 NY2d 275). The court explained the jurisprudential basis for allowing a juror to impeach his/her verdict as follows: "[s]tatements concerning outside influences on a jury, however, occurring less frequently and more susceptible to adequate proof, should be admissible to show that the defendant was prejudiced, for here the danger to our jury system is minimal compared with the more easily proven prejudice to the defendant" (People v. De Lucia, 20 NY2d at 279).

In examining the limited circumstances of what constitutes "outside influences," courts have set aside verdicts where the jurors made unauthorized visits to the crime scene and reported their findings and conclusions to the other jurors (People v. De Lucia, 20 NY2d 275); the jurors read and discussed news articles about the case (People v. Romano, 8 AD3d 503 [2nd Dept 2004]); the jurors [*18]used their own professional expertise to draw an expert conclusion about a material issue in the case distinct from and in addition to proofs adduced at trial (People v. Arnold, 96 NY2d 358 [2001]); and when the jurors were influenced by comments from court personnel on the merits of the case (Parker v. Gladden, 385 US 363 [1966]). In addition to proving "outside influences" affected the jury's final decision, a defendant seeking a new trial must also establish that improper conduct by a juror "may have affected a substantial right of the defendant" CPL § 330.30(2). Therefore, a defendant must demonstrate that he suffered a substantial risk of prejudice (Snediker v. County of Orange, 58 NY2d 647 [1982]; People v. Brown, 48 NY2d 388).

With respect to claims of juror misconduct, each case must be examined on its unique facts to determine the nature of misconduct and the likelihood that prejudice was engendered (People v. Brown, 48 NY2d at 394). "Of course, not every misstep by a juror rises to the inherently prejudicial level at which reversal is required automatically" (Id. at 394).

The defense motion is denied because the defense completely fails to substantiate 1) any misconduct by a juror occurred; 2) there was any outside influence; and 3) if misconduct or outside influence occurred, that a defendant was prejudiced by it. In fact, the defense, in its March 2007 memorandum of law in support of the defendants' motion for a new trial fails to even allege any prejudice to the defendants. The conclusion that the motion should be denied does not rest simply on the basis the defense bears the burden of proving these elements by a preponderance of the evidence, but on the basis the Court is convinced beyond all reasonable doubt no juror misconduct or outside influence occurred, and further, that even if it had, there was no prejudice to the defendants.

As described in the Findings of Fact, supra, the Court does not credit the testimony of A.C. regarding her claims she overheard four jurors discussing the case on their way to the subway, and that D.L., made certain comments attributed to him by A.C. However, even assuming she had observed and reported the remarks accurately, and assuming it referred to the defendants, the comment involved nothing more than an isolated remark between one juror and another (People v. Rhodes, 92 AD2d 744 [4th Dept. 1983]). There is no reason to believe this single remark had any effect on the verdicts. If made, the comment was only a terse aside by the juror and appeared to be nothing more than an expression of the juror's immediate reaction to the evidence the juror heard that day (see e.g. People v. Rhodes, 92 AD2d at 745). As described by A.C. it was made while four jurors were walking to the subway, in a casual conversation and if made, it does not rise to the level of premature deliberations (see People v. Horney, 112 AD2d 841 [1st Dept. 1985]).

While the Court has credited the testimony of the other jurors and alternate that on a very few occasions a juror made a comment about a witness, lawyer, or the Judge, these remarks, while imprudent and in violation of the Court's repeated instructions, are not enough to seriously raise the possibility the comments may have affected a substantial right of the defendants (CPL § 330.30[2]). There was absolutely no evidence that any comments were about or critical of a defendant or defense witness. On the contrary, they were either directed at a People's witness, the Judge or an attorney.

For instance, the comment about a People's witness, a homeless man, being the only one who told the truth came at a time when only the People's witnesses had testified. If the juror who made the comment believed he was the first witness telling the truth, it meant the juror did not believe the prior, People's witnesses. This could not have prejudiced the defendants. Further, even if a juror made a premature decision to credit the testimony of the homeless man, his testimony was about [*19]peripheral events the taking of the bar owner's keys which occurred more than a block away, and earlier than the beatings which led to the charges in this case. Further, this "wisecrack" was an off-the-cuff remark, juxtaposing the homeless, crack addicted witness as credible rather than the earlier more mainstream witnesses. In no manner does it evidence that the speaker had made up his mind as to any issue related to the case. Similarly, the comment about Mr. McCormack, a complainant and a People's witness, that "he is crazy" could not possibly have prejudiced the defendants. If a juror thought him "crazy" that could only help the defendants because no juror would credit the testimony of someone he/she thought crazy.

These rare comments did not amount to premature deliberations. The testimony is clear and consistent that they were brief one or two remarks in response to a witness or trial participant which never lasted more than a second or so and which never amounted to "deliberation." There was no weighing or sifting of the evidence, no exchange of views or discussions among jurors. On the occasions when a juror made a comment, another juror or the foreperson acted immediately to remind the juror not to speak about the case. While even these very rare comments, wisecracks or non-verbal gestures should not have been made, taken in the context of a long trial these remarks do not evidence premature deliberations, discussion with an alternate, outside influences, or rise to the level of misconduct. There is absolutely no evidence any remark colored other jurors' views of the evidence or ultimately even colored the speaker's views. It is inconceivable these brief comments had any effect on the verdicts (see People v. Horney, 112 Ad2d 841). In many respects it is unrealistic to think any group of jurors, kept together in a trial as long as this, could be expected to adhere to the Court's admonitions more closely than this jury did. Despite a Court's admonitions, people will always react to what they see and hear during the trial. It is a credit to the jurors that these instances were so limited.

In this case, there is no evidence the jury reached premature conclusions about any defendant's guilt. On the contrary, the long deliberations that occurred, the twenty plus notes the jury sent to the Court, the lack of a deadlock note and the verdicts reached all support the Court's conclusions these few remarks were not misconduct which prejudiced the defendants. The jury deliberated for three days and requested several readbacks of the witnesses, additional legal instructions and a viewing of exhibits. Only after three days of deliberations did the jury return verdicts acquitting all three defendants of the highest charge and convicting Jurlina and Sanchez of Gang Assault in the Second Degree and Amitrano of Assault in the Third Degree. Extensive deliberations alone do not insulate a jury's verdict from inquiry in appropriate cases, as to whether "jurors engaged in premature deliberations or commenced deliberations with a predisposition toward a guilty finding" (People v. Ordenana, 20 AD3D 39, 42 [1st Dept. 2005]). However, in this case, the testimony of the jurors, the nature of the brief off-hand comments, the verdicts reached, coupled with the length of the deliberations, evidences a complete lack of prejudice to the defendants.

Defendants do not allege the jurors made unauthorized visits to the crime scene (People v. De Lucia, 20 NY2d 275 [1967]), discussed newspaper articles about the case (People v. Romano, 8 AD3d 503 [2nd Dept 2004]), offered expert opinions about material issues in the case (People v. Arnold, 96 NY2d 358 [2001]) or discussed the case with court personnel (Parker v. Gladden, 385 US 363 [1966]). No new evidence was placed before the jury, there were no biased fact finders, nor were improper experiments conducted. There is not even a claim the jury rendered its verdict on anything other than evidence received in open Court. None of the comments compromised any juror's impartiality or colored the verdict as to any defendant. The Court is certain the verdicts [*20]returned in this case were based solely on the evidence introduced during the trial. The jury reached its final decision as to each defendant's guilt only after hearing all the evidence, the lawyers' closing arguments, the charge and deliberating at length.

To grant the defendants' motion would not only be contrary to the law but contrary to the evidence, common sense and justice. It would give the defendants a windfall based on a very few isolated comments which had no bearing on the outcome of the trial.

For the foregoing reasons, the defendants' motion to set aside the convictions in this case pursuant to CPL § 330.30(2) is denied. This constitutes the Decision and Order of the Court.

New York, New York

April 24, 2007__________________________

Roger S. Hayes, J.S.C.