Opinion
09-21-2016
The PEOPLE, etc., respondent, v. Jeffery READER, also known as Jeffrey Reader, appellant.
Lynn W.L. Fahey, New York, NY (Paul Skip Laisure of counsel; Florence Seaman on the brief), for appellant. Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Paul Skip Laisure of counsel; Florence Seaman on the brief), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
MARK C. DILLON, J.P., JEFFREY A. COHEN, BETSY BARROS, and FRANCESCA E. CONNOLLY, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Collini, J.), rendered June 24, 2013, convicting him of burglary in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contentions concerning the sufficiency of the Supreme Court's inquiry of the jury regarding alleged juror misconduct are unpreserved for appellate review (see CPL 470.05[2] ; People v. Knorr, 284 A.D.2d 411, 412, 728 N.Y.S.2d 169 ; People v. Albert, 206 A.D.2d 320, 322, 615 N.Y.S.2d 10, affd. 85 N.Y.2d 851, 623 N.Y.S.2d 848, 647 N.E.2d 1356 ). In any event, we find that the inquiry was sufficient to protect the defendant's right to a fair trial (see People v. Dombroff, 44 A.D.3d 785, 787, 843 N.Y.S.2d 421 ; People v. Knorr, 284 A.D.2d 411, 728 N.Y.S.2d 169 ; People v. Thom, 256 A.D.2d 481, 482, 683 N.Y.S.2d 279 ; People v. Simon, 224 A.D.2d 458, 458, 638 N.Y.S.2d 113 ; People v. Silvestre, 192 A.D.2d 563, 564–565, 596 N.Y.S.2d 109 ; People v. Sullivan, 167 A.D.2d 564, 565, 562 N.Y.S.2d 234 ).
Moreover, “ ‘the decision to declare a mistrial rests within the sound discretion of the trial court which is in the best position to determine if this drastic remedy is truly necessary to protect the defendant's right to a fair trial’ ” (People v. Knorr, 284 A.D.2d at 412, 728 N.Y.S.2d 169, quoting People v. Williams, 264 A.D.2d 745, 746, 696 N.Y.S.2d 55 ; see People v. Christian, 139 A.D.3d 870, 29 N.Y.S.3d 817 ; People v. Brown, 76 A.D.3d 532, 533, 904 N.Y.S.2d 911 ). The trial court's assessment as to whether juror misconduct warrants a mistrial is afforded great weight on appeal because of the court's unique position to observe the jurors (see People v. Dombroff, 44 A.D.3d at 787, 843 N.Y.S.2d 421 ; People v. Simon, 224 A.D.2d at 458, 638 N.Y.S.2d 113 ). “Because juror misconduct can take many forms, no ironclad rule of decision is possible” (People v. Dombroff, 44 A.D.3d at 787, 843 N.Y.S.2d 421 [internal quotation marks omitted] ). Here, the defendant failed to establish that a photograph that a juror had found on the Internet and shown to several other jurors, which was not admitted into evidence during the trial, resulted in prejudice and deprived him of a fair trial (see CPL 280.10[1] ; People v. Knorr, 284 A.D.2d 411, 728 N.Y.S.2d 169 ; People v. Turner, 210 A.D.2d 445, 445–446, 620 N.Y.S.2d 434 ; People v. Chapman, 202 A.D.2d 297, 298, 609 N.Y.S.2d 177 ; see also People v. Owens, 287 A.D.2d 469, 471, 731 N.Y.S.2d 48 ). The photograph, which depicted the exterior of the house that the defendant allegedly had burglarized, was sufficiently similar to other photographs that were admitted into evidence for the jury to properly consider. Moreover, each juror assured the Supreme Court that he or she would remain fair and impartial and that nothing about the extraneous photograph would influence their respective deliberations. Moreover, the court provided a curative instruction, which the jury is presumed to have followed (see People v. Tockash, 101 A.D.3d 1052, 1053, 956 N.Y.S.2d 169 ; People v. Bassett, 55 A.D.3d 1434, 1435, 866 N.Y.S.2d 473 ; People v. Martin, 54 A.D.3d 776, 776–777, 863 N.Y.S.2d 491 ; People v. Brown, 21 A.D.3d 1035, 1036, 802 N.Y.S.2d 694 ; People v. Fernandez, 269 A.D.2d 167, 167–168, 701 N.Y.S.2d 907 ; People v. Martin, 179 A.D.2d 1044, 1045, 579 N.Y.S.2d 803 ). Accordingly, the Supreme Court properly declined to declare a mistrial.