Opinion
November 19, 1993
Appeal from the Supreme Court, Erie County, Doyle, Jr., J.
Present — Callahan, J.P., Pine, Lawton, Doerr and Davis, JJ.
Judgment unanimously affirmed. Memorandum: The court properly denied defendant's motion pursuant to CPL 330.30 (2) to set aside the verdict based on juror misconduct without conducting a hearing. The jury was properly charged that possible punishment must not affect its deliberations. Despite that charge, eight jurors averred that they agreed to compromise and find defendant guilty of robbery and not guilty of burglary because of their belief that robbery was a less serious crime involving a lighter sentence. As a general rule, a juror may not impeach his or her own verdict unless it is alleged to be the product of an improper outside influence (People v De Lucia, 20 N.Y.2d 275, 278-279). When a juror introduces "significant extrarecord facts" into deliberations, and he thereby becomes "an unsworn witness testifying to critical information without defendant being afforded his right of confrontation or cross-examination guaranteed by the 6th Amendment, the constitutional rights take precedence over New York's policy against impeachment of jury verdicts" (People v Edgerton, 115 A.D.2d 257, 258, lv denied 67 N.Y.2d 882). Because the information outside the record allegedly considered by the jury concerned punishment, which was not a "material issue" (People v Brown, 48 N.Y.2d 388, 394; see also, People v Legister, 75 N.Y.2d 832), the juror who imparted the information was not an "unsworn witness whom defendant was denied the opportunity to cross-examine" (People v Dashnau, 187 A.D.2d 966, 967, lv denied 81 N.Y.2d 838; see, People v Magnano, 175 A.D.2d 639, lv denied 79 N.Y.2d 860; People v Edgerton, supra, at 258).
Defendant's argument that his conviction of robbery is against the weight of the evidence is essentially an argument that the verdict was repugnant. It is not preserved for our review (see, People v Alfaro, 66 N.Y.2d 985, 987) and in any event lacks merit. We find defendant's sentence neither harsh nor excessive.