By a motion dated June 4, 2009, the defendant moves pursuant to CPL 330.30 (2) to

setaside the verdict of guilty of the crimes of Robbery in the First Degree, Rape in the First Degree, Sodomy in the First Degree, and Assault in the First Degree, rendered on May 11, 2009, after a jury trial, on the ground that improper conduct by a juror occurred which affected a substantial right of the defendant.

The People opposed the motion but orally consented to a hearing.

The defendant submitted an addendum to his motion dated June 23, 2009.

A hearing was held on July 23, 2009 followed by oral arguments on the motion.

The People submitted a letter in opposition to the motion, dated July 28, 2009.

The defendant submitted a letter in support of the motion, dated August 17, 2009.

For the reasons set forth below, the motion is denied.

The defendant was indicted in 2006 as a Juvenile Offender for crimes occurring in 1996, when he was fifteen years old, including Robbery in the First Degree, Rape in the First Degree, Sodomy in the First Degree, and Assault in the First Degree. The indictment was obtained after a National DNA database hit in 2006, following his conviction in North Carolina, resulted in the subsequent comparison of a buccal swab taken directly from the defendant which established a [*2]match between the defendant's DNA and semen recovered in 1996 from the victim's clothing. At trial the defendant testified that he was a member of the Bloods gang in Brooklyn at the time of the crimes charged, and the presence of his DNA resulted from his having had consensual sex with the victim two days before the date of the incident as part of her own induction into the Bloods gang. The defense at trial accordingly argued that the victim had been attacked two days later by someone else. The jury also heard evidence that shortly after the alleged incident, the victim had identified another person as her attacker. However, following that person's indictment, a DNA comparison exonerated that person and that indictment was dismissed.

A jury consisting of twelve jurors and three alternates was selected on May 4, 2009. The Juror alleged to have committed misconduct by this motion was selected as Juror Number Four.

At the outset of the trial on May 5, 2009, the Court gave the Jury preliminary instructions as required by CPL 270.40. The instructions included a specific admonition that the Jurors were not to discuss the case amongst themselves or with anyone else nor were they to do any research about the case. Furthermore, the Court emphasized that these instructions were so important that the Court would be repeating them every time the jury would be leaving the courtroom. Testimony concluded on Friday, May 8, 2009, and the Jury was excused for the weekend .

On Monday, May 11, 2009, the case concluded with summations, the Court's final instructions to the Jury, and deliberations. The deliberations began at approximately 12:30 pm.

The defendant was found guilty of all four submitted counts in less than an hour. Given the victim's background as an assistant manager in a retail clothing store at the time of the crime who was attacked after leaving the subway on her way home from work, the jury quickly rejected the defendant's preposterous testimony that she had group sex with him and two other Bloods members two days before and that he had not otherwise seen the victim before or after that encounter. The case was adjourned to June 8, 2009 for sentencing.

On May 14, 2009, defense counsel received a phone call from Kendra Hutchinson, Esq., an attorney with Appellate Advocates, informing him that she had been at a dinner with friends on the evening of May 9, 2009, and that one of the women at her table was talking about a criminal case in which she was a sitting juror. Based on the information provided by Ms. Hutchinson, defense counsel was able to determine that the woman at the dinner, identified by first name by Ms. Hutchinson, was Juror Number Four.

On May 22, 2009, Ms. Hutchinson prepared an affidavit regarding what she heard at the dinner. This affidavit was attached to the defendant's motion to set aside the verdict and formed the basis for the Court ordering the present hearing.

Defendant called two witnesses, Kendra Hutchinson, Esq., and Juror Number Four. Defense counsel stated that a court-appointed investigator for him had spoken to Ms. Hutchinson prior to the hearing and had also spoken with Juror Number Four (who was located through a formerly listed telephone number). The investigator also spoke with three other women who were at the dinner. Based on that investigation, the substance of which was submitted as defendant's June 23, 2009 addendum, the defense chose not to call any of those potential witnesses.

The People did not call any witnesses at the hearing.

[*3]Kendra Hutchinson

Ms. Hutchinson, an attorney employed by Appellate Advocates, testified consistently with her affidavit. The Court finds her testimony credible. Prior to speaking with defense counsel on May 14, 2009, she did not know him, either personally or professionally and had never had any contact with the defendant or this case.

Ms. Hutchinson went to dinner in the East Village on the evening of Saturday May 9, 2009 with a group of friends. They joined people she met for the first time that night. Among the six other people present at the dinner was a woman invited by someone else whom Ms. Hutchinson also met for the first time that night. Ms. Hutchinson learned the person's first name. It was later determined this person was Juror Number Four.

Ms. Hutchinson was speaking with someone seated to her left at the dinner table when she realized that Juror Number Four was discussing the facts of a criminal case in which she was sitting as a juror. Juror Number Four was sitting on the other side of the table and was not speaking directly to her.

Juror Number Four said it was a Brooklyn case, involved a young defendant, and that a woman had been slashed and raped and there was something about gang involvement. Ms. Hutchinson testified that at some point Juror Number Four said that her mind was made up as to the defendant's guilt, although Juror Number Four also said she recognized she had, what Ms. Hutchinson believed she called "a duty to deliberate" with the other jurors (Hearing at 12-13; 24). Further, Juror Number Four described the Jury as a "diverse pool" and that she would deliberate with them (Hearing at 13). Ms Hutchinson testified she understood this to mean that Juror Number Four thought other people might have a different opinion, and she had a duty to discuss those opinions. Ms. Hutchinson did not directly discuss the case with Juror Number Four at dinner. According to Ms. Hutchinson the Juror seemed to be speaking to the group as a whole, and she did not recall anyone talking back.

The only time Ms Hutchinson spoke directly to Juror Number Four was after the dinner when the whole group was walking to the subway. During the walk, Juror Number Four asked her occupation. Ms. Hutchinson replied she was a defense attorney. Juror Number Four then told her that she had Googled the lawyer's name and learned that he was not a Legal Aid lawyer and had a private practice. (In fact, defense counsel was appointed pursuant to 18B of the County Law.) Juror Number Four then ask her a long question about DNA evidence, whether Ms. Hutchinson had ever seen a DNA match come up years afterward, and whether that meant the defendant had been out of the jurisdiction. Ms. Hutchinson told Juror Number Four that she could not talk about it and tried to change the subject. Juror Number Four told her that all the evidence was in but that the Jury had not received the charge. Juror Number Four also told her that the defendant had testified that the sexual assault had been consensual, although she was not sure if Juror Number Four said this at the dinner table or during the walk to the subway.

Ms. Hutchinson explained that she did not notify the Court on Monday morning of what had taken place, because she did not know whom to call to find out what Brooklyn Supreme Court trial part was charging a jury in a rape case. Had the Court been promptly alerted, Juror Number Four would have been questioned by the Court prior to deliberations, and the parties would have had an opportunity to be heard on whether Juror Number Four should be discharged for having "engaged in misconduct of a substantial nature." CPL 270.35 (1). On Thursday, Ms. Hutchinson spoke to her [*4]supervisor at Appellate Advocates who obtained the information about the case the same day without apparent difficulty. Ms. Hutchinson then contacted the defendant's attorney.

Juror Number Four

Juror Number Four in her testimony acknowledged that the Court had given her instructions not to discuss the case, not to do any research, and to keep an open mind until deliberations.

Juror Number Four said she had gone to dinner on May 9, 2009 with a friend, an acquaintance, and four people she did not know previously, including Kendra Hutchinson. Juror Number Four testified that she had three to four mixed drinks before dinner and another two during dinner. Juror Number Four testified she did not recall whether she spoke about the facts of the case at dinner. The Court did not find her claimed lack of recollection credible, because Juror Number Four remembered other details from that evening. Instead, the Court believes Juror Number Four wished to avoid admitting violating the Court's instructions not to discuss the case.

When asked whether she could testify under oath that she did not ask about DNA, she replied, "I do not recall...I cannot say under oath I did not, but I do not recall" (Hearing at 38). When asked if she could say under oath that she did not question Ms. Hutchinson concerning the time period that elapsed between the time of the alleged crime and the trial she said, "No" (Hearing at 38). Juror Number Four did recall speaking to Ms. Hutchinson while walking to the subway and telling Ms. Hutchinson she had Googled information about the attorney.

Juror Number Four testified she had maintained an open mind as to the defendant's guilt or innocence during the trial and at the time she started deliberating. She testified that neither the information she Googled regarding the defense attorney nor any other outside information influenced her decision in deliberations, and she did not share anything she learned about defense counsel with any of the other jurors. She testified she based her verdict solely on the evidence introduced at trial and the Court's charge, and said that her mind was not made up when she went to dinner. She further testified she participated in deliberations based solely on the evidence and not on any type of outside influence.

There is no evidence of "improper conduct by another person in relation to a juror." Therefore, it is only the conduct of Juror Number Four that is in issue.

A showing of juror misconduct alone will not automatically result in the granting of a new trial. "[I]t must be demonstrated that the fundamental right to a fair and impartial assessment of the facts [was] frustrated" by the alleged misconduct. People v. Horney, 112 AD2d 841, 842 (1st Dept. 1985) quoting People v. Phillips, 87 Misc 2d 613, 625 (1975), affd 52 AD2d 758 (1st Dept. 1976), lv denied 39 NY2d 949 (1976). In order to prevail on a motion to set aside the verdict pursuant to CPL 330.30 (2) a defendant must demonstrate prejudice to a substantial right. People v. Rodriguez, 100 NY2d 30, 35-36 (2003) (juror's concealment of friendship with a prosecutor unrelated to the [*5]case on trial did not rise to level of substantial prejudice to defendant). A defendant has the burden of proving by a preponderance of the evidence every fact essential to support a claim of prejudice. CPL 330.40 (2) (g).

"Because juror misconduct can take many forms, no ironclad rule of decision is possible." People v. Brown, 48 NY2d 388 at 394 (1979) (new trial ordered where one juror had informed others that she had conducted a "test" of the visibility from her own Volkswagon van, which differed from the GM van used by police, and that she could see the face of someone in an adjacent vehicle). The Court of Appeals has held that "not every misstep by a juror rises to the inherently prejudicial level at which reversal is required automatically. Each case must be examined on its unique facts to determine the nature of the misconduct and the likelihood that prejudice was engendered." People v. Clark, 81 NY2d 913, 914 (1993) (defendant failed to show at hearing how juror's conversation with a potential alibi witness was inherently prejudicial to defendant's substantial rights, citing People v. Brown, supra. at 394); People v. Bell 307 AD2d 1047 (2d Dept. 2003) (under circumstances of this case, defendant made no showing that misconduct of two jurors, who allegedly made unauthorized visits to scene of crime, was prejudicial to the defendant's substantial rights).

As narrowed by the Court during the post-hearing oral arguments, there are three things that Juror Number Four is alleged to have done in violation of the Court's instructions: (1) she talked about the case; (2) she did research about the case in that she went on Google to find out about the defense attorney; and (3) she said she made up her mind about the case prior to deliberations.

1. Talking About the Case

The Court credits Ms. Hutchinson's testimony that Juror Number Four spoke about the case during the dinner. Although Juror Number Four testified she did not recall talking about the case, she was unable to state unequivocally under oath that she did not.

While the Court finds that Juror Number Four talked about the case in violation of the Court's specific admonition, the defendant has, nevertheless, failed to establish by a preponderance of the evidence that talking about the case affected Juror Number Four's ability to fairly assess the evidence. At the hearing, there was no evidence that anyone at the dinner provided any feedback to Juror Number Four's remarks about the case — either confirming or disputing anything she said. Although the defense attorney's investigator interviewed three other people present at the dinner table, apparently none of those people had anything to say to the investigator that would support a different conclusion.

Thus, the real evil the Court's instruction not to discuss the case was designed to avoid, namely the introduction of an outside influence into the deliberative process, either through information about the case or another person's agreement or disagreement with the juror's own statements, was not shown to have occurred in this case. Compare People v. Marrero, 83 AD2d 565 (2d Dept. 1980) (verdict set aside where jurors and alternate jurors engaged in extensive pre-deliberation discussions of the evidence, because the verdict may have been affected by alternate jurors' opinions and extraneous material).

In contrast to this case are those cases where convictions were overturned because jurors were exposed to critical information not adduced at the trial. See People v. De Lucia, 20 NY2d 275 [*6](1967) (verdict set aside where jurors improperly visited alleged crime scene); People v Maragh, 94 NY2d 569 (2000) (verdict set aside where two jurors, who were nurses, interjected professional expertise into the deliberations). Those cases are distinguishable from what occurred here.

2. Googling the Attorney

Although Juror Number Four Googled the defense attorney and learned that he had a private practice, this does not warrant setting aside the verdict, because this information did not create a substantial risk of prejudice to the defendant. See People v. Lara, 44 AD3d 488 (1st Dept. 2007) (misconduct of juror in collecting weather information from internet did not create substantial risk of prejudice warranting setting aside of verdict). Although defense counsel argues that it is hard to believe that Juror Number Four stopped her Google search upon learning he had a private practice, there is no evidence to support this assertion. It also appears to this Court that Juror Number Four had no filter between her brain and her mouth that night, perhaps attributable to her claimed alcohol consumption. Therefore, it seems likely that had she done any additional on-line investigation about the case resulting in anything of interest, she would have mentioned it. Accordingly, the defendant has not shown that the juror's violation of the Court's instruction not to do any research about the case caused a substantial risk of prejudice to the defendant. People v. Richardson ,185 AD2d 1001 (2d Dept. 1992) (defendant failed to carry burden at hearing of showing that juror's alleged discussion with friend may have affected a substantial right of the defendant).

Acknowledging the easy availability of on-line information and the popularity of social websites, the Committee on Criminal Jury Instructions on May 5, 2009 (coincidentally, the same day as the Court's preliminary instructions in this case) revised its "Jury Admonitions In Preliminary Instructions" to include specific instructions to jurors not to use "internet maps or Google Earth" as well as not to actually visit any place mentioned during the trial, not to use "the internet" to do any research about the case, and not to use "text messages, email, internet chat or chat rooms, blogs, or social websites, such as Facebook, MySpace, or Twitter" as well as face-to-face conversations to discuss the case. No matter what the instructions may be, they are only as effective as the integrity of the juror who hears them. It remains to be seen whether jurors will ultimately be sequestered during trial to insure they do not use the internet to obtain information concerning the case or whether the unpopularity of this alternative will require that jurors be trusted to curb their curiosity despite the reality that some, like Juror Number Four, will be unable to resist the temptation.

3. Juror Number Four's Claim She Had Made Up Her Mind

Although Ms. Hutchinson testified that Juror Number Four said she had made up her mind as to the defendant's guilt, Ms. Hutchinson further testified that Juror Number Four modified that statement by also stating she recognized her duty to deliberate with the other jurors who might not agree with her. Further, Juror Number Four during her testimony expressly denied that her mind was actually made up when she talked about the case that night. Juror Number Four testified that, in fact, she had an open mind during the trial up to and until she began deliberations.

Based on all the evidence in the case, both at the trial and at the hearing, this Court finds that Juror Number Four, despite what she said at the dinner table, had not "made up her mind" (in violation of the Court's instructions to "keep an open mind") to such an extent that her actual state of mind created a substantial risk of prejudice to the defendant. At the time of her statement, all of the evidence had been presented. While in a case such as this many jurors likely would have "made [*7]up their minds" after hearing the defendant's testimony, this alone, as is the case here, does not mean that such jurors could not fairly listen to the remainder of the case and listen with an open mind to the differing opinions expressed during deliberations by other jurors. The Court is satisfied that Juror Number Four deliberated in this case as an impartial juror, listened to the views of other jurors, and decided the case, along with the other jurors in less than an hour, based solely on the evidence presented in the Courtroom.

The Court finds that the defendant has failed to carry his burden that Juror Number Four's misconduct, either the individual acts or in their totality, affected a substantial right of the defendant or impaired her from fairly and impartially assessing the evidence in this case.

Accordingly, defendant's motion to set aside the verdict is denied.

SO ORDERED

Joel M. Goldberg

JUDGE