Supreme Court, Queens County, May 28, 2019

Jorge Santos, Forest Hills, for defendant.

Richard A. Brown, District Attorney, Kew Gardens (Matthew Luongo of counsel), for plaintiff.

The defendant is charged with several counts of criminal possession of a weapon and related crimes. Beginning on January 15, 2019, the jury heard testimony that stretched over eight days. In that time, the jury received evidence that the defendant choked a woman and then threatened her with a gun. The jury also heard additional evidence that three handguns, two of which were operable and loaded, were found in the defendant's home with his DNA on them. They heard the defendant say two of those guns, those with his DNA on them, belonged to his son. And finally, they heard evidence that the defendant ran a fraudulent credit card and driver's license operation in the basement of his home. The defendant testified and denied that he choked and threatened the complainant. He also testified that two of the guns the police had recovered belonged to his son and the third belonged to another person. He claimed that his DNA was on two of the guns only because he had found them and checked to see whether they were loaded.

On the second day of the jury's deliberations^[FN1]—January 24, 2019—the court suspended deliberations at 12:40 p.m. at the behest of the defendant because he claimed to be ill with a severe migraine headache.

At about 2:35 p.m., juror No. 1 telephoned the courtroom and spoke to the court clerk. Juror No. 1 said, in sum and substance, that something had happened and he could no longer be impartial. The court clerk asked whether he had some interaction with someone and juror No. 1 declined to explain any further. The court clerk then asked whether juror No. 1 would be able to return to the courthouse and juror No. 1 said that he could not.

Defense counsel and the prosecutor were contacted and asked to return to the courtroom. While the court was awaiting their{**64 Misc 3d at 489} return, Daniel Newcombe, an Assistant District Attorney with the Kings County District Attorney's Office, telephoned chambers. ADA Newcombe stated that he was a friend of juror No. 1. Juror No. 1 had contacted him and told him that the defendant had been to his home and attempted to give juror No. 1 documents which the defendant claimed would prove his innocence.

Juror No. 1 was then contacted and he said that he and his family were safe. Juror No. 1 was upset and very concerned over his family's safety. Juror No. 1 was directed to return to the courthouse on January 25, 2019, at 10:00 a.m., which he agreed to do. Arrangements were made for juror No. 1 to be kept separate from the other 11 jurors.

On January 25, 2019, this court conducted an inquiry^[FN2] of juror No. 1 as to possible jury tampering.^[FN3] Juror No. 1 was very reluctant to enter the courtroom and speak in the presence of the parties and the defendant.^[FN4] When a court officer attempted to bring him into the courtroom, he initially refused. With the parties' consent, this court then went to speak with juror No. 1 to convince him to enter the courtroom, which he finally did.

After being sworn, juror No. 1 said that deliberations had been suspended at about 1:00 p.m. on January 24, 2019. After picking up his lunch, he left the courthouse at about 1:25 p.m. and took a car service to his home. When juror No. 1 exited the vehicle, a male approached him outside the gate of his home. The male pushed documents into juror No. 1's hand and stated that "Derek Sargeant is innocent and being extorted." Juror No. 1 asked the male how he obtained his address and the{**64 Misc 3d at 490} male responded that he got it from public records. The male then stated that he trusted juror No. 1 and left the area.

Juror No. 1 stated the interaction lasted less than one minute and that he kept some of the documents. The documents were copies of the search warrant for the defendant's home, the signature page of a judge's decision and order pertaining to the defendant's case, and a police report detailing the response of New York City Police Department's Emergency Response Unit at the defendant's home.

Juror No. 1 equivocated and hedged as to the identity of the defendant as the person who confronted him at his home. Juror No. 1 did not want to appear in the courtroom for the hearing and only appeared reluctantly at my insistence. Juror No. 1 explained that he had been sick all week, felt light-headed and it was raining during the interaction.

Juror No. 1, shaken by the confrontation, contacted a friend who he believed could help him—Daniel Newcombe. Juror No. 1 texted ADA Newcombe that it was an emergency and that ADA Newcombe should call him. When he spoke to ADA Newcombe juror No. 1 described his own tone of voice as panicky. As ADA Newcombe advised, juror No. 1 contacted the court. Although juror No. 1 had told the court clerk that something had happened that had compromised his impartiality, he could not recall the exact language he used when speaking with the court clerk. Juror No. 1 admitted that he was emotional, nervous, jittery and concerned over the safety of his family and, given what had happened, he did not think he could be impartial.

Juror No. 1 was confronted with ADA Newcombe's written statement in which ADA Newcombe recounted that juror No. 1 told him it was the defendant who confronted him.^[FN5] He characterized the exchange in which he identified defendant as a miscommunication between him and ADA Newcombe in a brief telephone call.

Even so, juror No. 1 described the person who confronted him as physically fit, approximately the same height, weight, and skin tone as the defendant who, during the course of the trial, testified that he was fit and regularly worked out. Moreover, his physicality was displayed to the jury whose attention was called directly to him.{**64 Misc 3d at 491}

At the conclusion of juror No. 1's testimony, both parties and the court agreed that juror No. 1's impartiality had been compromised. Juror No. 1, with the consent of both parties, was discharged from the jury.^[FN6]

The defendant moved and the court held in abeyance his motion for a mistrial because only 11 jurors remained on the jury. Moreover, he refused to consent to allow the trial to continue with only 11 jurors.

The People thereupon requested the defendant's trial continue with 11 jurors based on the misconduct of defendant or, at the very least, someone acting at his behest and requested that the hearing be continued so the court could consider the testimony of ADA Newcombe. In support of their motion the People called ADA Newcombe to testify.

ADA Newcombe has been with the Kings County District Attorney's Office for nearly five years and is currently assigned to the Special Victims Bureau. On January 24, 2019, at about 2:15 p.m., ADA Newcombe received a text message from juror No. 1 who has been his friend for more than two years. Juror No. 1 had written that it was an emergency and that ADA Newcombe should call him. Almost immediately, ADA Newcombe telephoned juror No. 1 and juror No. 1 stated that he was a sitting juror in Queens County Supreme Court,^[FN7] he was in the midst of deliberating and when he returned home, the defendant approached him and attempted to hand him documents. Juror No. 1 also told ADA Newcombe that he had taken a car service home and when he exited the vehicle, the defendant approached him. Incredulous at what he just heard, ADA Newcombe asked juror No. 1 whether he meant it was a defendant on whose case he was deliberating that had approached him. Juror No. 1 was unequivocal and replied yes. ADA Newcombe found juror No. 1 to be nervous and afraid of what would happen next. ADA Newcombe told juror No. 1 that he would call him back. ADA Newcombe spoke to a more senior colleague and then telephoned juror No. 1 and told him to call the police and call the court as soon as possible. Juror No. 1 had reservations about contacting the police but agreed to contact the court. ADA Newcombe then realized that he had an ethical obligation to contact the court and to relate his conversation with a sitting juror.{**64 Misc 3d at 492}

At the beginning of the trial, the parties and the jury were told that our day would end no later than 4:30 p.m. each day we were in session. Generally, we ended each day between 4:00 p.m. and 4:30 p.m., except for January 24th when we recessed at the defendant's request at about 12:40 p.m. To make his claimed illness more credible, the defendant laid the groundwork the day before (Jan. 23, 2019) by informing his attorney that he was suffering from a migraine. The next day, when the defendant complained again of the ailment, his defense attorney made the court aware that the defendant had complained of the same issue privately to him the day before. The request to recess early on January 24th appeared all the more credible to his attorney and to the court because the migraine headache attack apparently not only had not abated on his taking medication but had gotten worse because the medication made him nauseous. Thus, the defendant had the opportunity to confront juror No. 1 on the afternoon of January 24th and, in fact, orchestrated that result.

The defendant's motion for a mistrial is denied.

I have no doubt that it was the defendant who confronted juror No. 1 at his home. ADA Newcombe's testimony demonstrated that, almost immediately after the incident occurred, juror No. 1 described the person who approached him as the defendant in this case. ADA Newcombe was apparently shocked by this and attempted to clarify that juror No. 1 meant the defendant in the case in which juror No. 1 was deliberating. Juror No. 1 then confirmed that it was the defendant. I find that juror No. 1's identification of the defendant to Mr. Newcombe was unequivocal and reliable.

Moreover, juror No. 1's description of the height, weight, skin tone and physical appearance of the man who confronted him matched that of the defendant. Although juror No. 1 did not identify the defendant as the person who approached him during the Buford inquiry, the record makes clear that he avoided doing so out of fear for himself and his family. Both his reluctance to appear in the courtroom and his own testimony support that conclusion. The overwhelming fear expressed by the juror for the safety of his family is, in my view, a compelling reason that explains juror No. 1's equivocation of directly identifying the defendant in court on January 25th. The defendant by his conduct placed juror No. 1 in an untenable position.{**64 Misc 3d at 493}

The words used by the defendant or by one acting at his direction were direct and intended to improperly influence juror No. 1 while in the midst of his deliberations. And the documents thrust upon juror No. 1 were part of the defendant's discovery, documents to which the defendant had access. Further, only defendant, who contrived to ensure that both he and juror No. 1 would not be in court that afternoon, stood to benefit from this interaction with juror No. 1.

A trial jury consists of 12 jurors. (CPL 270.05 [1].) Nonetheless, both the United States Constitution and the New York Constitution allow for a jury of fewer than 12 under certain circumstances. (See Williams v Florida, 399 US 78 [1970]; People v Gajadhar, 9 NY3d 438 [2007].)

In Williams v Florida, the Supreme Court observed that the history of the development of trial by jury in criminal cases "affords little insight into the considerations that gradually led the size of that body to be generally fixed at 12." (399 US at 87.) The Court noted that most of the theorized reasons for the number, given after it became fixed, "rest on little more than mystical or superstitious insights into the significance of '12.' " (Id. at 88.) Thus, the Court characterized the use of a 12-person jury as "a historical accident, unrelated to the great purposes which gave rise to the jury in the first place." (Id. at 89-90.)

The Court determined that the 12-person requirement was not an essential "component of the Sixth Amendment." (Id. at 100.) While "the number [of jurors] should probably be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representative cross-section of the community," the Court found that there was "little reason to think that these goals are in any meaningful sense less likely to be achieved when the jury numbers six, than when it numbers 12—particularly if the requirement of unanimity is retained." (Id.) Accordingly, it concluded that a Florida court's use of a six-person jury in a robbery case was not unconstitutional. (Id. at 103.)

Consistent with this principle, rule 23 (b) (3) of the Federal Rules of Criminal Procedure provides: "After the jury has retired to deliberate, the court may permit a jury of 11 persons to return a verdict, even without a stipulation by the parties, if the court finds good cause to excuse a juror." In United States v {**64 Misc 3d at 494}Stratton (779 F2d 820, 831 [2d Cir 1985]), the Second Circuit indicated that permitting a jury of 11 to render a verdict, pursuant to rule 23 (b), was the preferred manner for a court to proceed, rather than declaring a mistrial. In United States v Gibson (135 F3d 257, 260 [2d Cir 1998]), the court stated "the Advisory Committee Notes indicate that verdicts by fewer than eleven jurors are proper even in short trials and that this decision is confided to the discretion of the trial court."

In United States v Vartanian (476 F3d 1095 [9th Cir 2007]), the Ninth Circuit found that a trial court did not abuse its discretion by dismissing a juror, based on inappropriate contact between the juror and people associated with the defendant, and proceeding with an 11-member jury pursuant to rule 23 (b). There, the jury foreperson sent the trial judge a note during deliberations, stating that multiple jurors had witnessed juror No. 7 "chatting" with the defendant's family. (Id. at 1096.) Upon questioning by the court, juror No. 7 was less than forthcoming about her interactions with the defendant's family and minimized her contact with them. (Id. at 1096-1097.) But when the other jurors were questioned, they described several improper contacts between juror No. 7 and the defendant's family and associates: juror No. 7 "made a point" of taking the elevator alone with people associated with the defendant's case, intentionally approached the defendant's family and spoke with them, and initiated a conversation with the defendant's attorney outside of court. (Id.)

Based on the court's questioning of juror No. 7 and the other jurors, it found that juror No. 7 had been untruthful with the court. (Id.) The court, therefore, concluded that it could not trust her to act as a fair and impartial juror, dismissed her from service, and permitted deliberations to continue with 11 jurors. (Id.) On appeal, the Ninth Circuit affirmed and found that the trial court's decision to dismiss juror No. 7 was "appropriate and well within the district court's discretion." (Id. at 1099.)

Similarly, in United States v Edwards (188 F3d 230 [4th Cir 1999]), the Fourth Circuit Court of Appeals affirmed a conviction after the trial court dismissed a juror and allowed deliberations to continue with 11 jurors. In that case, during deliberations, one of the jurors received a call at his home in which someone said, "those . . . two brothers need your help," apparently referring to the codefendants. (Id. at 235.) Upon questioning, the juror stated that the call had scared him, that he was{**64 Misc 3d at 495} "shocked" that someone had obtained his telephone number, and that it caused him to have trouble sleeping. (Id. at 236.) The trial court found that the call put the juror in an "untenable" position, excused him, and proceeded with 11 jurors, pursuant to rule 23 (b). (Id. at 235-236.) The Fourth Circuit affirmed, concluding that the trial court had not abused its discretion. (Id.)

New York law also allows for a defendant to be tried before an 11-member jury. Article VI, § 18 of the New York Constitution provides that crimes "shall be tried by a jury composed of twelve persons, unless a jury trial has been waived as provided in section two of article one of this constitution." (NY Const, art VI, § 18 [a].) The Court of Appeals held in People v Gajadhar (9 NY3d 438 [2007]) that a defendant may knowingly, voluntarily and intelligently waive the right to a 12-member jury. As noted, the defendant has declined to consent to waive such right. The issue now is whether to proceed with the trial with 11 remaining jurors on the ground that the defendant by his wrongdoing forfeited his right to a jury of 12.

The Court of Appeals noted in People v Corley (67 NY2d 105, 110 [1986]), "[w]hereas waiver results from a knowing, voluntary and intelligent decision, forfeiture occurs by operation of law, based on objective facts and circumstances and without regard to defendant's actual state of mind" (citations omitted). Courts have found that a defendant may by his conduct forfeit numerous rights, including those of a constitutional dimension. Thus, a defendant may forfeit his right to be present at trial (People v Smith, 143 AD3d 1005 [2d Dept 2016], lv denied 28 NY3d 1189 [2017]), during summations (People v Sanchez, 7 AD3d 645 [2d Dept 2004], lv denied 3 NY3d [*7]681 [2004]), for the polling of the jury (People v Jackson, 16 AD3d 156 [1st Dept 2005], lv denied 4 NY3d 887 [2005]), and at his sentencing (People v Percer, 90 AD3d 789 [2d Dept 2011], lv denied 19 NY3d 1104 [2012]). By his conduct, a defendant may also forfeit his right to counsel (see People v Smith, 92 NY2d 516 [1998]; People v Sloane, 262 AD2d 431 [2d Dept 1999], lv denied 93 NY2d 1027 [1999]), to confront a witness (People v Geraci, 85 NY2d 359 [1995]), to proceed pro se (People v Anderson, 94 AD3d 1010 [2d Dept 2012], lv denied 19 NY3d 956 [2012]), to introduce testimony regarding an identification made at a photo array (People v Perkins, 15 NY3d 200 [2010]), and to raise a claim of violation of his statutory right to a speedy trial (People v Panico, 130 AD2d 777 [2d Dept 1987]).{**64 Misc 3d at 496}

This court finds that the defendant's actions in tampering with a juror most closely resemble the conduct of defendants who threaten or otherwise tamper with witnesses and, thereby, forfeit their confrontation rights. Both the United States Supreme Court and the Court of Appeals have found that a defendant may forfeit his constitutional right to confront witnesses against him by engaging in such conduct. In Davis v Washington (547 US 813, 833 [2006]), the Supreme Court explained that "one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation." The Court observed that "when defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce." (Id.) In that regard, "[w]hile defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system." (Id.)

The Court of Appeals has also explained the policy supporting forfeiture-by-wrongdoing analysis in cases involving witness tampering. Under New York law, where the People can prove by clear and convincing evidence that a defendant has procured a witness's unavailability "through violence, threats or chicanery," they may use that witness's prior out-of-court statements as evidence in chief. (Geraci, 85 NY2d at 365.) In such cases, the Court of Appeals has found that "the seriousness of the misconduct, if proven, is certainly sufficient to justify the sanction of forfeiture" of the defendant's confrontation right. (Id. at 365, 366 n 2.) This rule "is based on sound public policy meant to prevent the defendant from taking advantage of his or her own wrongdoing and to protect the integrity of the proceedings by deterring the defendant from acting on the strong incentive to tamper with adverse witnesses." (People v Smart, 23 NY3d 213, 220 [2014].)

Here, the seriousness of the defendant's conduct is akin to the conduct in the witness-tampering situations considered by the Supreme Court and Court of Appeals. Although no comparable rule has been enunciated in cases involving juror tampering, it appears that no New York court has had occasion to do so. Accordingly, this court adopts the reasoning and standard of proof the Court of Appeals has employed in Geraci and subsequent cases, as appropriate under the circumstances of this case.

Applying those principles here, the court finds that clear and convincing evidence established that the defendant deliberately{**64 Misc 3d at 497} rendered a juror unable to continue to serve. The defendant in a calculated manner hatched a scheme to feign an illness in order to obtain an adjournment for an early dismissal. After obtaining juror No. 1's address, the defendant waited for juror No. 1 to arrive home from the courthouse. He then confronted juror No. 1 by proclaiming his [*8]innocence and alleging that he was a victim of police and prosecutorial misconduct. In support of his claims, the defendant foisted documents he had received during the pendency of his case onto juror No. 1 and told juror No. 1 that he trusted him.

Shortly after this confrontation, juror No. 1, nervous and afraid for the safety of his family, told the court clerk that he could no longer be impartial. The next day, juror No. 1 reiterated that he could not be impartial and rely solely on the evidence presented at the defendant's trial. The court finds that the defendant by his conduct either believed he could cause a mistrial or obtain a favorable verdict by attempting to influence juror No. 1's verdict. Thus, clear and convincing evidence established that the defendant intentionally engaged in conduct that resulted in juror No. 1's inability to continue to serve as a juror in this case.

No court can countenance any attempt to corrupt the deliberative process of a jury. To declare a mistrial because of the defendant's misconduct would not be a deterrence but rather simply acquiescing to his misconduct.

Given the principle enunciated by the Second Department in Matter of Smith v Brown (105 AD3d 965, 967 [2d Dept 2013])^[FN8] that "even if the reasons for granting a mistrial are deemed actual and substantial, the trial court must explore appropriate alternatives," under the circumstances of this case, a reasonable alternative to a mistrial was to continue with the defendant's case with 11 jurors. (See also Arizona v Washington, 434 US 497 [1978] [holding that a "high degree" of necessity is required for a court to declare a mistrial].){**64 Misc 3d at 498}

"Neither in criminal nor in civil cases will the law allow a person to take advantage of his own wrong." (Falk v United States, 15 App DC 446, 460 [1899] [defendant absconded on second day of testimony; trial continued in his absence and verdict rendered in his absence],^[FN9] quoted with approval Illinois v Allen, 397 US 337, 350 [1970, Black, J., concurring] [defendant lost right to be present at trial because of his disruptive, abusive and disrespectful behavior]; Diaz v United States, 223 US 442 [1912] [during the direct and cross-examination of two witnesses for the prosecution, the defendant voluntarily absented himself from the trial and consented that the trial continue which it did].)

Because it has been established by clear and convincing evidence that the defendant has [*9]engaged in juror tampering, the court finds that the reasoning the Court of Appeals has applied in cases involving witness tampering holds true here. By his conduct, the defendant has forfeited his right to a jury of 12. As noted, it appears that no other court of this state has had occasion to consider whether a defendant may forfeit the right to a 12-person jury, but the same sound policy elucidated by the Court of Appeals in People v Geraci (85 NY2d at 366) dictates that result in this case. As in that case, the seriousness of the defendant's conduct justifies the sanction of forfeiture. (See Geraci, 85 NY2d at 365.) Any other conclusion would allow the defendant to benefit from his own wrongdoing, a result the law does not permit. (See Smart, 23 NY3d at 220; People v Ortega, 12 Misc 3d 1182[A], 2006 NY Slip Op 51381[U] [Sup Ct, NY County 2006].) As the Supreme Court observed in the witness-tampering context in Davis, "when defendants seek to undermine the judicial process," the Constitution "does not require courts to acquiesce." (547 US at 833.) If a mistrial were granted under these circumstances, there would be little to deter a defendant from tampering with jurors, either to influence their deliberations or to obtain a mistrial, when he believed an acquittal was otherwise unlikely.{**64 Misc 3d at 499}

For these reasons, the People's request that the defendant's trial continue with 11 jurors based on the defendant's misconduct was granted.^[FN10]

"It does not seem to us to be consonant with the dictates of common sense that an accused person, being at large upon bail, should be at liberty, whenever he pleased, to withdraw himself from the courts of his country and to break up a trial already commenced. The practical result of such a proposition, if allowed to be law, would be to prevent any trial whatever until the accused person himself should be pleased to permit it." (Id. at 454.)