Opinion
2006-574 OR CR.
Decided October 30, 2008.
Appeal from a judgment of the Justice Court of the Town of Montgomery, Orange County (Frederick Gorss, J.), rendered March 14, 2006. The judgment convicted defendant, upon a jury verdict, of sexual misconduct and endangering the welfare of a child.
Judgment of conviction reversed on the law and a new trial ordered.
PRESENT: RUDOLPH, P.J., TANENBAUM and SCHEINKMAN, JJ.
Defendant argues that the verdict in this prosecution for sexual misconduct (Penal Law § 130.20) and endangering the welfare of a child (Penal Law § 260.10) was against the weight of the evidence because the complainant's testimony was not credible. We disagree. Giving much deference to the jury's verdict, particularly with respect to its credibility determinations ( see People v Romero, 7 NY3d 633, 644), even as we conduct our own review of the evidence ( see People v Bleakley, 69 NY2d 490), we find that the verdict was not against the weight of the evidence with respect to any of the elements of the offenses as charged to the jury ( see People v Danielson, 9 NY3d 342).
We reverse because the record does not dispel the possibility that remarks allegedly made by the court officer in the presence of the jurors deprived defendant of a fair trial. The first of these alleged remarks was a question to defense counsel inquiring what he thought about Ramsey Clark's representing two defendants in Iraq. The import of this alleged question was that Clark had represented evil people, and the question could have conveyed to the jurors a belief on the part of the court officer that defense counsel was similarly representing an evil person in the instant case. Even more troubling is the second of the alleged remarks, which was that "if a guy just looks at a woman the wrong way, she can bring a sex charge against him." This comment by a uniformed court officer, if actually made and if overheard by the jurors, may have conveyed to the jurors the impression that the young complainant was being forced to testify in a courtroom environment hostile to women alleging that they were victims of sex offenses. Thus, the comment, if made, may have triggered a backlash reaction of sympathy for the complainant on the part of the jurors.
In view of the potential for prejudice to defendant, we find that the court erred in denying defense counsel's application for a mistrial without questioning the jurors, as defense counsel requested, as to whether they had heard the court officer's alleged remarks, and, if they had, whether they were able to remain impartial ( see CPL 280.10, 310.10; People v Ciaccio, 47 NY2d 431; People v Rukaj, 123 AD2d 277; cf. People v Figueroa , 37 AD3d 246 , 247). Although the court replaced the court officer with a non-uniformed court employee, and delivered a curative instruction, these measures did not adequately dispel the possibility of prejudice to defendant ( see generally People v Bannerman, 59 AD2d 719). Accordingly, the judgment of conviction is reversed and a new trial ordered.
In view of our disposition, we do not reach defendant's remaining arguments.
Rudolph, P.J., Tanenbaum and Scheinkman, JJ., concur.