Defendant moves to vacate his conviction upon the theory of improper jury conduct not appearing on the record during prosecution of the defendant, and "new evidence" obtained by the defendant regarding a witness who testified at the CPL §330.30 hearing, which evidence was not available at the time of the first hearing on this issue.

The People submitted an affirmation in opposition.

Defendant submitted a reply to the affirmation in opposition.

Defendant was convicted by jury in 2003, in Sullivan County, of Murder in the Second Degree (PL §125.25), Offering a False Instrument for Filing in the First Degree (PL §175.35), and Perjury in the Second Degree (PL §210.45). The Court sentenced him to an aggregate term of imprisonment of 26 1/3 years to life.

Within one month after the sequestered jury reached its verdict, and prior to sentencing, a [*2]juror informed defense counsel there had been jury misconduct throughout the trial and during deliberations, to wit: (1) that a female juror claimed to have her mind made up regarding the guilt of the defendant, and (2) that two other jurors coerced a 19 year old juror (under-aged juror) into voting for a guilty verdict by threatening to tell the Judge and the young juror's employer (Sullivan County Department of Public Works) that they had seen him drinking alcohol at the hotel bar where they were sequestered.

Procedural History

Upon learning of the possible jury misconduct, defense counsel promptly filed a CPL §330.30 motion to set aside the verdict. This Court held a hearing on the matter, at which most of the jury and other witnesses testified. Upon consideration of the testimony of the jurors, other witnesses, and additional information provided by counsel, this Court denied the CPL §330.30 motion in its entirety by order dated June 10, 2003. By order to Show cause, dated June 19, 2003, defense counsel requested the Court reconsider the CPL §330.30 motion in light of the fact that the under-aged juror was fired from his county job subsequent to the hearing. This Court denied defendant's request and thereafter sentenced the defendant.

Defendant appealed his convictions to the Appellate Division, Third Department. His convictions were affirmed, People v. Karen, 17 AD3d 865 [2005], and leave was denied by the Court of Appeals, People v. Karen, 5 NY3d 764 [2005]. In May, 2006, defendant filed a petition for Writ of Habeas Corpus in the United States District Court, Southern District of New York, raising the same issues he raised in the CPL §330.30 motion. That petition was denied in September, 2006.

Now, the defendant is seeking relief by means of a motion pursuant to CPL §440.10(1)(f) and (1)(g). Defendant claims (1) that the alleged jury misconduct, if it had appeared on the record, would have required a reversal of the judgment upon appeal, and (2) there is newly discovered evidence that a witness who testified at the CPL §330.30 hearing (Peter Lilholt, who was the Commissioner of Sullivan County Department of Public Works, the under-aged juror's employer) was subsequently convicted of a felony, and therefore the credibility of his testimony should be reexamined by the Court.

Discussion

Vacatur under CPL §440.10 is at the discretion of the court, People v. Bryce, 88 NY2d 124 [1996]. Under subsection (1)(g), newly discovered evidence must meet six requirements:

1. It must be such as will probably change the result if a new trial is granted; 2. It must [*3]have been discovered since the trial; 3. It must be such as could have not been discovered before the trial by the exercise of due diligence; 4. It must be material to the issue; 5. It must not be cumulative to the former issue; and. 6. It must not b e merely impeaching or contradicting the former evidence.

People v. Lackey, 48 AD3d 982, 983 [3rd Dept. 2008](citations omitted), lv. denied, 10 NY3d 936 [2008].

With respect to issues affecting juror misconduct before or during deliberations, there must also be a showing of "improper outside influence or extraneous information..." on, or considered by the jury. People v. Riggins, 298 AD2d 192 [1st Dept. 2002] (citation omitted), lv. denied, 99 NY2d 563 [2002]. The general rule in New York is that "a jury verdict may not be impeached by proof of the tenor of its deliberations.'" People v. Lehrman, 155 AD2d 693, 694 [2nd Dept. 1989] (citation omitted).

In the case at bar, Defendant has offered no "new" evidence. Defendant has only offered information regarding the subsequent felony conviction of a witness who testified at the CPL §330.30 hearing, which the Court conducted after the jury rendered its verdict. Such information is not of the type contemplated under CPL §440.10(1)(g).

Regardless, the information fails to meet the first requirement under Lackey, supra, in that it would not have any effect on the result if a new trial were granted. Defendant's reliance on People v. Santos, 306 AD2d 197 [1st Dept. 2003], aff'd 1 NY3d 548 [2003] is misplaced. Peter Lilholt was not a witness against the defendant, he did not otherwise testify at trial, nor did he offer any information or evidence to the People during the trial. Therefore, whether his testimony during the CPL §330.30 was credible in light of his subsequent conviction, had no impact on the jury and would have no impact on any subsequent jury if this Court vacated the judgment, because he was not a witness during the trial, as was the case in Santos, supra.

With regard to alleged juror misconduct, this Court held a thorough hearing on this matter in 2003 prior to sentencing. This Court found there were no grounds to set aside the jury's verdict. Defendant has offered nothing new in this instant CPL §440.10 motion in regard to that issue, which if it appeared on the record during trial would have required a reversal on appeal. For example, the defendant has failed to show there was any outside influence by court personnel (Parker v. Gladden, 385 US 363 [1966]; Riggins, supra), or that any of the jurors became a witness against the defendant (People v. Brown, 48 NY2d 388 [1979]). Defendant has offered nothing new to suggest that the alleged misconduct on the part of any jurors "impaired his right to a fair trial." People v. Horney, 112 AD2d 841 [1st Dept. 1985]; People v. Covington, 44 AD3d 510 [1st Dept. 2007], lv. denied 9 NY3d 1032 [2008].

Based upon the above, it is

ORDERED, that defendant's motion to vacate is denied in its entirety. [*4]

This shall constitute the Decision and Order of this Court.

DATED: March 15, 2012

Monticello, NY

_______________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge

and Surrogate