Appeal from a judgment of the Justice Court of the Town of Clarkstown, Rockland County (Scott B. Ugell, J.), rendered December 15, 2011. The judgment convicted defendant, upon a jury verdict, of two counts of aggravated harassment in the second degree.

ORDERED that the judgment of conviction is reversed, on the law, and the matter is remitted to the Justice Court for a new trial.

Defendant was charged, by misdemeanor information, with one count of aggravated harassment in the second degree in violation of Penal Law § 240.30 (1) (a) and one count of aggravated harassment in the second degree in violation of Penal Law § 240.30 (2). Following a trial, the jury returned a verdict convicting defendant of the charged offenses. Defense counsel then asked, and was granted permission, to voir dire the alternate juror, who stated that she had been in the jury room when deliberations had taken place and that she had participated in the deliberation. Defendant moved for a mistrial. The Justice Court discharged the jury and requested briefs on the issue of the presence and participation of the alternate juror during deliberations. [*2]

The court subsequently denied defendant's motion in a written order. Adopting the People's position, the court treated the motion as one to set aside the verdict, rather than as a motion for a mistrial. Relying on CPL 330.30 (2), which allows a court, at any time after the rendition of the verdict and before sentencing, to set aside the verdict based upon improper conduct by a juror "which was not known to the defendant prior to the rendition of the verdict," the court found that defendant's attorney had known of the alternate juror's participation in the deliberations prior to the rendition of the verdict, and denied the motion on that basis. Defendant was then sentenced to one year in jail, to be served concurrently with a sentence imposed in the Rockland County Court.

The Justice Court properly treated defendant's motion as one to set aside the verdict (CPL 330.30) rather than as a motion for a mistrial, since the motion was made after the verdict had been rendered (see People v Roberts, 91 AD2d 1099 [1983]; People v Collins, 72 AD2d 431 [1980]). However, the record does not support the Justice Court's finding that defendant knew about the alternate juror's participation in the jury's deliberations prior to the rendition of the verdict. Rather, the record demonstrates that the jury had been deliberating for at least one hour before defendant's attorney discovered the alternate juror's presence in the deliberation room, and that the jury deliberated for a mere 15 minutes more after defendant's attorney made that discovery. It was not until after the verdict had been delivered and the alternate juror questioned that defendant's attorney became aware that she had actually participated in the deliberations. In any event, defendant correctly argues on appeal that the Justice Court could have also treated his motion as one to set aside the verdict pursuant to CPL 330.30 (1), which allows the court to set aside the verdict for any ground appearing on the record that would require a reversal of the judgment as a matter of law.

The right to a jury trial is fundamental to our scheme of justice and essential to a fair trial (see People v Rivera, 15 NY3d 207, 211 [2010]). "At the heart of this right is the need to ensure that jury deliberations are conducted in secret, and not influenced or intruded upon by outside factors" (id.). "We must bear in mind that the confidentiality of the thought process of jurors, their privileged exchange of views, and the freedom to be candid in their deliberations are the soul of the jury system" (U.S. v Antar, 38 F3d 1348, 1367 [3d Cir 1994, Rosen, J. concurring]). "In theory, the presence of alternate jurors during jury deliberations might prejudice a defendant in two different ways: either because the alternates actually participated in the deliberations, verbally or through body language'; or because the alternates' presence exerted a chilling' effect on the regular jurors" (United States v Olano, 507 US 725, 739 [1993]; see also United States v Virginia Erection Corp., 335 F2d 868, 872 [4th Cir 1964]). Since it is clear from the record that the alternate juror participated in the jury's deliberations, a new trial is required.

Accordingly, the judgment of conviction is reversed and the matter is remitted to the Justice Court for a new trial.

Nicolai, P.J., LaSalle and Tolbert, JJ., concur. [*3]
Decision Date: September 05, 2013