Opinion
609.3 KA 15-02178
10-09-2020
The PEOPLE of the State of New York, Respondent, v. Jeffrey BLUNT, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, murder in the second degree ( Penal Law § 125.25 [1] ) and conspiracy in the second degree (§ 105.15). When this appeal was previously before us, we held that County Court (Argento, J.) erred in summarily denying defendant's motion to set aside the verdict pursuant to CPL 330.30 (2) ( People v. Blunt , 174 A.D.3d 1504, 1506, 106 N.Y.S.3d 514 [4th Dept. 2019] ). "The sworn allegations in support of defendant's motion, including those in the affidavit of his mother, indicated that a juror may have had an undisclosed, potentially strained relationship with the mother resulting from attending high school and working together, possibly knew about defendant's criminal history, and purportedly attempted to speak with the mother's husband during a lunch break at trial, and that the alleged misconduct was ‘not known to ... defendant prior to the rendition of the verdict’ " ( id. , quoting CPL 330.30 [2] ). We concluded that "the allegations required a hearing on the issue whether the juror's alleged misconduct prejudiced a substantial right of defendant" ( id. [internal quotation marks omitted] ). Upon remittal, the court (DeMarco, J.) conducted a hearing and thereafter denied the motion.
CPL 330.30 (2) provides that a verdict may be set aside on the ground "[t]hat during the trial there occurred, out of the presence of the court, improper conduct by a juror, ... which may have affected a substantial right of the defendant and which was not known to the defendant prior to the rendition of the verdict." Upon a hearing pursuant to CPL 330.30, "the defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion" ( CPL 330.40 [2] [g] ). When determining a motion to set aside a jury verdict based upon juror misconduct, "the facts must be examined to determine ... the likelihood that prejudice would be engendered" ( People v. Brown , 48 N.Y.2d 388, 394, 423 N.Y.S.2d 461, 399 N.E.2d 51 [1979] ; see People v. Neulander , 34 N.Y.3d 110, 113, 111 N.Y.S.3d 259, 135 N.E.3d 302 [2019] ; People v. Maragh , 94 N.Y.2d 569, 573-574, 708 N.Y.S.2d 44, 729 N.E.2d 701 [2000] ). "The trial court is invested with discretion and posttrial fact-finding powers to ascertain and determine whether the activity ... constituted misconduct and whether the verdict should be set aside and a new trial ordered" ( Maragh , 94 N.Y.2d at 574, 708 N.Y.S.2d 44, 729 N.E.2d 701 ).
We reject defendant's contention that the court abused its discretion in denying his motion to set aside the verdict on the ground of juror misconduct. Here, upon our review of the record, we conclude that " ‘[t]here is no basis to disturb the court's fact-findings and credibility determinations, which are entitled to great deference on appeal’ " ( People v. Dizak , 93 A.D.3d 1182, 1185, 940 N.Y.S.2d 408 [4th Dept. 2012], lv denied 19 N.Y.3d 972, 950 N.Y.S.2d 355, 973 N.E.2d 765 [2012], reconsideration denied 20 N.Y.3d 932, 957 N.Y.S.2d 691, 981 N.E.2d 288 [2012] ). As the court properly concluded, the evidence adduced at the hearing established that the juror and the mother had nothing more than a superficial relationship—which arose from knowing each other during childhood and thereafter having minimal, sporadic personal and professional contact over the course of several decades—such that they recognized each other enough to occasionally engage in brief conversation during public encounters. There was no evidence of a history of enmity between the juror and the mother, and we defer to the court's assessment that the demeanor of the juror and the mother when they each testified did not suggest the existence of any past or present acrimony. We note that both the mother and her husband were present in the courtroom during the trial, but the interaction between the juror and the mother's husband during a recess amounted to nothing more than a mutual exchange of greetings in passing. We also agree with the court that defendant failed to establish that the juror engaged in misconduct by deliberately concealing her relationship with the mother (see People v. Hernandez , 107 A.D.3d 504, 504, 967 N.Y.S.2d 64 [1st Dept. 2013], lv denied 22 N.Y.3d 1199, 986 N.Y.S.2d 420, 9 N.E.3d 915 [2014] ; cf. People v. Rodriguez , 100 N.Y.2d 30, 33, 760 N.Y.S.2d 74, 790 N.E.2d 247 [2003] ). Instead, the juror's failure to disclose the relationship, and her testimony at the hearing in that regard, appeared to be the byproduct of her minimal contacts with the mother combined with the courtroom setting, thus evincing inadvertence rather than an attempt to deceive the court or conceal the relationship (see Hernandez , 107 A.D.3d at 504, 967 N.Y.S.2d 64 ; People v. Adams , 278 A.D.2d 920, 921, 719 N.Y.S.2d 428 [4th Dept. 2000], lv denied 96 N.Y.2d 825, 729 N.Y.S.2d 445, 754 N.E.2d 205 [2001] ; cf. Neulander , 34 N.Y.3d at 113-115, 111 N.Y.S.3d 259, 135 N.E.3d 302 ).
We further agree with the court that, even assuming, arguendo, that the juror engaged in improper conduct by intentionally concealing the subject relationship, defendant failed to establish that such misconduct "may have affected a substantial right" ( CPL 330.30 [2] ; see Rodriguez , 100 N.Y.2d at 34, 760 N.Y.S.2d 74, 790 N.E.2d 247 ; People v. West , 4 A.D.3d 791, 793, 772 N.Y.S.2d 166 [4th Dept. 2004] ; Adams , 278 A.D.2d at 921, 719 N.Y.S.2d 428 ). In particular, nothing in the record suggests that the juror harbored any bias against the mother that may have been imputed to defendant inasmuch as the evidence at the hearing did not even establish that the juror was aware that defendant was related to the mother (see People v. Coles , 27 A.D.3d 830, 831-832, 810 N.Y.S.2d 262 [3d Dept. 2006], lv denied 7 N.Y.3d 757, 819 N.Y.S.2d 883, 853 N.E.2d 254 [2006] ). Moreover, there is no evidence to support defendant's speculative assertion that the juror likely obtained unfavorable information about him while working for the same employer as the mother or while occasionally attending gatherings that included members of defendant's family (see Hernandez , 107 A.D.3d at 504, 967 N.Y.S.2d 64 ).
Finally, contrary to defendant's remaining contention, we conclude that the sentence is not unduly harsh or severe, and we decline defendant's request to exercise our power to reduce the sentence as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b] ).