The defendant Auguste's motion, to renew and reargue, dated October 2, 2014, this Court's decision, dated September 24, 2014, denying Auguste's motion to set aside the verdict in this case, upon consideration of the People's response, dated October 8, 2014, is granted and upon reconsideration the Court adheres to its original decision.

The People's procedural objections to the Court considering the merits of this current motion may be valid, but, nevertheless, Auguste's substantive arguments could be raised on direct appeal. Therefore, this decision will reach the merits of Auguste's claims.

In this motion, counsel for Auguste, Toni Marie Angeli, asserts that her original supporting affidavit was "misleading, confusing, and unclear" with respect to her admission that she was aware prior to the verdict that discharged Alternate No.5 was allegedly communicating with the deliberating jury. Angeli now asserts that this was not what she meant to say and, that, in fact, she did not learn of these alleged communications until after the verdict had been rendered.

Even accepting Angeli's corrected version of the events, no hearing on this claim of juror misconduct is required, because the current motion does not address the other two

The current motion also provides some detail, not provided in the original motion, as to certain items Auguste claims were wrongfully excluded from evidence based on hearsay objections.

However, an examination of the record now cited in this motion reveals, as was stated in this Court's original decision, that the rulings excluding this evidence were not in error, but even if they were in error, any error was harmless and would not require reversal of the conviction by an appellate court as a matter of law. CPL 330.30 (1).

For example, contrary to the defense's contention, the Court properly excluded Auguste's attempt to introduce into evidence through cross-examination of a People's witness who was an official in the New York State Department of Education, copies of letters addressed to New York State agencies from educational authorities in Jamaica and Haiti, as well as letters from privately hired lawyers, concerning the status of foreign nursing schools. Contrary to what Auguste has asserted in both this motion and the original motion, this evidence was offered into evidence "for the truth of the matter" (146).

Further, at the time these letters were offered into evidence, there was no showing that Auguste was aware of their contents. When Auguste later testified, the substance of most if not all of these letters as well as verbal hearsay statements made to Auguste were put before the jury with an instruction that this evidence was admitted for the limited purpose of showing what Auguste may have believed to be true. That is why any error in originally excluding this evidence the first time it was offered was harmless.

Indeed, the current motion does not dispute this Court's statement in its original decision (at 5) that evidence that was originally excluded by these rulings as hearsay was subsequently admitted during the defense case. (See for example 3070-3072, 3084, 3087, 3089, 3090, 3091-3094, 3096-3098, 3108-3111, 3113-3116, 3130-3137, 3295-3299.)

Similarly, the claims made on this motion regarding hearsay evidence excluded during the cross-examination of a former student at ILPN, a different school than the one operated by Auguste, of statements made in an ILPN graduation ceremony speech that may have been heard by that student (999) and letters and documents that may have been seen by a receptionist at ILPN were also properly excluded (1751-1770).

This motion also claims that the Court wrongfully denied Auguste's several [*2]motions for a mistrial based on: (1) belated disclosure of certain tape recordings made by an undercover officer (844-845); (2) a colloquy before the jury which Angeli provoked by claiming before the jury that the Court in twice sustaining objections to the same improper question was insulting her by suggesting she was deliberately not asking the question properly (2373-2374); and (3) a "renewed" motion for a mistrial made on an unspecified prior day of the trial based on unspecified evidentiary rulings concerning out-of-court conversations overheard by Auguste (1794-1795). The basis of that "renewed" mistrial motion was that Auguste "does not intend to testify" (1795) and needed the jury to hear this evidence. However, as noted, Auguste subsequently did testify, and the jury got to hear virtually all the evidence the Court previously had excluded. The record does not support the necessity for granting Auguste a mistrial for any reason.

The final prong of this motion is a detailed explanation of why Auguste was unduly prejudiced by having a joint trial with co-defendant Jude Valles. Auguste now cites three portions of the trial record to support this claim (1030, 1232, and 1460-1462). All of these citations are statements made during colloquy with the Court out of the presence of the jury.

To demonstrate undue prejudice caused by a joint trial, the test is whether the purported conflicting defenses were portrayed to the jury at trial in a manner that would lead the jury to infer the defendant's guilt simply based on the conflict alone. People v. Mahboubian, 74 NY2d 174, 184 (1989).

Thus, the three citations made on this motion are irrelevant, because they were not heard by the jury and do not demonstrate that the Court's initial decision denying the motion on this ground was in error. The current motion does not discuss the original decision's analysis of this issue which was based on how the case was presented to the jury with citations to the trial testimony.

Accordingly, the Court adheres to its original decision in all respects.

JOEL M. GOLDBERG