Order, Supreme Court, New York County (Frederic Berman, J.), entered April 19, 1984, which, after a hearing, set aside a jury verdict finding defendant guilty of assault in the second degree on the ground of juror misconduct (CPL 330.30 [2]) and ordered a new trial, unanimously reversed, on the law and on the facts, the verdict reinstated, and the case remanded for sentencing.
We do not believe that the several minor incidents alleged to constitute juror misconduct affected any substantial right of the defendant or impaired the ability of the jury to fairly and impartially assess the case wherein defendant, a transit police officer, was accused of beating the complainant into unconsciousness with his nightstick after apprehending him for theft of services.
The incidents in question were originally brought to light by one persistent juror (juror No. 2) who telephoned the defense counsel on the Sunday night following the Friday of the verdict to confess that he was "incapacitated” when he voted guilty and actually believed defendant to be innocent. Thereafter, defense counsel moved orally to set aside the verdict, and later brought this motion on papers which included affidavits of three jurors and one alternate alleging improprieties.
At this point the court correctly directed that a hearing be held to ascertain what actually transpired. {People v Smith,
After a four-week long trial, the jury commenced deliberations on Tuesday, November 29, 1983 and was sequestered throughout the week until Friday afternoon, December 2, 1983, when it reached its unanimous guilty verdict.
The jury conscientiously deliberated during this extensive four-day period and by Thursday afternoon the complaining juror herein was the lone holdout for acquittal. By Friday afternoon he voluntarily assented to vote guilty and lucidly explained his reasons to his fellow jurors, admitting no reservations. He was not coerced nor was his vote a "cave-in” vote, according to the testimony of the jurors at the hearing. (This juror testified that he was physically and mentally exhausted, and hysterical and incapable of reaching a decision.) The forelady waited one-half hour more before announcing the verdict to insure his lack of reservation. Then, when polled by the court, neither did this juror nor any other express any reservations or hesitation.
Before specifically addressing the instances of misconduct found by the trial court, we must note some general principles which must guide a court in determining whether to set aside a jury verdict.
More than irregularities or an indiscretion of the jury alone warrant 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 Phillips,
Moreover, the jurors themselves may not as a general rule impeach their own duly rendered verdict by statements or testimony averring their own misconduct. (People v De Lucia,
Against this background we examine the four errors which led the trial court to set aside the verdict.
A. PREDELIBERATION COMMENTS
The first error relates to various predeliberation comments allegedly made by several jurors on different occasions. A
Even assuming that these comments were heard by the other jurors, as apparently found by the trial court, they were not lengthy discussions but merely terse asides. Moreover, these comments were not prejudicial in nature, as they did not indicate premature deliberations or sifting of facts, or any predetermined opinions based upon "outside influences”. In the whole these comments related to tangential issues unrelated to the evidence. (Cf. People v Marrero,
B. DISCUSSIONS AT THE HOTEL
During the second night of sequestration at the hotel, two pairs of juror roommates held brief conversations regarding the case.
The first pair, who at the time were both for acquittal, briefly discussed some of the evidence and their hesitant feelings. However, it cannot be said that this discussion constituted prejudicial deliberations outside of the jury room. Both of these jurors still were for acquittal, and there were two more full days of deliberation before the verdict was reached.
The second pair included the complaining juror No. 2 and his roommate. However, the roommate testified that he refused to discuss the case and constantly reminded juror No. 2 about the Judge’s admonition not to discuss the case. Only upon the juror’s insistence did the roommate give in and suffer his continued conversation. He also briefly demonstrated an arm motion made by the victim, also at juror No. 2’s insistence.
This limited demonstration is not the type of "test”, "conscious, contrived experimentation”, or re-creation of the crime which juries are prohibited from conducting (People v Brown,
C. NEWSPAPER HEADLINE
A newspaper with a headline concerning the congressional
This publicity concerning general claims of police brutality, without any reference to defendant, cannot be deemed prejudicial. It has been held that the potential for prejudice from media publicity is most tenuous when it involves reports of similar crimes committed by other individuals, even members of a group associated with defendant. (People v Moore,
D. court officer’s remark
The final alleged error was a remark made by a court officer to some of the jurors that the jury would be sequestered over the weekend if it could not reach a verdict by Friday. This comment was allegedly made on Wednesday. Again, there is minimal support in the record that the comment was actually made. Even if made, there is no indication that this comment had any coercive effect on the deliberations. First, this "outside influence” by the court officer was not related to the merits of the case (cf. Parker v Gladden,
In sum, defendant failed to meet his burden of proving that the alleged misconduct impaired his right to a fair and impartial trial and the trial court erred in setting aside the jury’s verdict on such ground. Concur — Murphy, P. J., Ross, Carro, Lynch and Ellerin, JJ.