92 A.D.2d 744 | N.Y. App. Div. | 1983
Judgment unanimously affirmed. Memorandum: Defendant appeals from his convictions of two counts of murder, second degree, and one count each of promoting prostitution, second degree, and assault, third degree. A principal factual issue was defendant’s responsibility under section 20.00 of the Penal Law for intentionally aiding one Walter Taylor in the “trial,” “conviction,” and “death sentence” of Marie Schneeberger for violating his instructions as a prostitute and in causing her death in executing the “sentence” by means of electrocution and/or evisceration. On review of the record, viewing the evidence in the light most favorable to the People (see People v Kennedy, 47 NY2d 196, 203), we conclude that the verdict is fully supported by the evidence. We find no reversible error in Trial Term’s denial without a hearing of defendant’s application made six weeks after the trial to set aside the verdict on the ground of juror misconduct pursuant to CPL 330.30 (subd 2). In support of the motion, defendant introduced a written unsigned statement and a sworn oral “deposition” of Simy Bakker, a volunteer with the jail ministry, who had become acquainted with defendant during trial. She stated that on May 15, 1980, on the third day of testimony, she was present in the courtroom for a few hours and while waiting in the hallway “to wish [defense counsel] luck,” she overheard one juror state to another: “Rhodes is guilty, anyone who had anything to do with the murder is guilty.” She described both jurors but was not positive where they sat in the jury box. Although she said that she was “shocked” when she heard the comment, she said nothing to defense counsel when she spoke to him immediately thereafter. Nor did she mention the incident to defendant whom she visited in jail two days later. She said nothing about it until she contacted defense counsel over a month later after returning from Europe and after learning that defendant, whom she “believed with all [her] heart * * * could not kill anybody,” had been convicted. The cases relied on by defendant for the proposition that a hearing was mandated, principally, People v Burling (303 NY 382) and People v Gordon (77 AD2d 662) are distinguishable. Burling involved discussion of the case by the jury in public before it was submitted to the jury and communications between prosecution witnesses and jurors through the open windows of the jury room during deliberations. Gordon concerned not a posttrial motion but a mistrial motion, denied during trial without a hearing, based on a juror’s in-court statement which suggested that the jury had deliberated prematurely. Here, by contrast, we have only evidence of an isolated incident involving a private comment of one juror to another. Nor does the comment of the juror, if accepted at face value, show any pre-existing bias which, had it come to light, would have provided a basis for a challenge for cause (cf. People v Leonti, 262 NY 256; People v Harding, 44 AD2d 800). Rather, the comment, although concededly
