Opinion
2022–03038 Ind. No. 531/19
12-13-2023
The PEOPLE, etc., respondent, v. Carlos VELIZ, appellant.
Alan Katz, Garden City Park, NY, for appellant. Anne T. Donnelly, District Attorney, Mineola, NY (Jason R. Richards and Michael J. Balch of counsel), for respondent.
Alan Katz, Garden City Park, NY, for appellant.
Anne T. Donnelly, District Attorney, Mineola, NY (Jason R. Richards and Michael J. Balch of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., JOSEPH J. MALTESE, PAUL WOOTEN, DEBORAH A. DOWLING, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Terence P. Murphy, J.), rendered April 1, 2022, convicting him of burglary in the first degree (four counts), burglary in the second degree, robbery in the first degree (six counts), and robbery in the second degree (five counts), upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed.
The defendant contends that the Supreme Court erred in admitting into evidence a redacted recording of his statements to the police inasmuch as the statements were hearsay and did not qualify as an admission because they were exculpatory in nature. However, even assuming, arguendo, that the statements constituted hearsay, "[a] false exculpatory statement of the defendant may be admitted in evidence as part of the People's case in chief to demonstrate consciousness of guilt" ( People v. Koltun, 163 A.D.3d 720, 721, 81 N.Y.S.3d 121 ; see People v. Hendricks, 214 A.D.3d 1466, 1466, 184 N.Y.S.3d 659 ). The defendant's contention that the court erred by failing to give a consciousness of guilt jury charge related to these statements is unpreserved for appellate review, as he failed to request such a jury charge (see CPL 470.05[2] ; People v. Palacios–Correa, 166 A.D.3d 657, 658, 87 N.Y.S.3d 32 ), and we decline to reach this contention in the exercise of our interest of justice jurisdiction (see People v. Luckey, 73 A.D.3d 568, 569, 905 N.Y.S.2d 3 ).
The defendant contends that the Supreme Court erred in denying, after a hearing, his motion pursuant to CPL 330.30(2) to set aside the verdict based upon allegations of juror misconduct. "Generally, a jury verdict may not be impeached by proof of the tenor of its deliberations, but it may be upon a showing of improper influence" ( People v. Brown, 48 N.Y.2d 388, 393, 423 N.Y.S.2d 461, 399 N.E.2d 51 ; see People v. Torres, 189 A.D.3d 898, 899, 136 N.Y.S.3d 422 ; People v. Davis, 86 A.D.3d 59, 64–65, 924 N.Y.S.2d 132 ). Improper influence embraces jury conduct which tends to put the jury in possession of evidence not introduced at trial (see People v. Brown, 48 N.Y.2d at 393, 423 N.Y.S.2d 461, 399 N.E.2d 51 ). When determining a motion to set aside a verdict based upon juror misconduct, "the facts must be examined to determine the nature of the material placed before the jury and the likelihood that prejudice would be engendered" ( id. at 394, 423 N.Y.S.2d 461, 399 N.E.2d 51 ; see People v. Maragh, 94 N.Y.2d 569, 573–574, 708 N.Y.S.2d 44, 729 N.E.2d 701 ). "Absent a showing of prejudice to a substantial right, proof of juror misconduct does not entitle a defendant to a new trial" ( People v. Lemay, 69 A.D.3d 757, 758, 894 N.Y.S.2d 63 ; see CPL 330.30[2] ; People v. Davis, 86 A.D.3d at 64, 924 N.Y.S.2d 132 ).
Here, contrary to the defendant's contention, juror number nine's testimony that juror number two insulted her and bullied her, which the Supreme Court credited, raises no question of outside influence but, instead, seeks to impeach the verdict by delving into the tenor of the jury (see People v. Torres, 189 A.D.3d at 898, 136 N.Y.S.3d 422 ; People v. Karen, 17 A.D.3d 865, 867, 793 N.Y.S.2d 273 ). Although the notes juror number two briefly used during deliberations were contrary to the court's instructions, the evidence adduced at the hearing established that these notes consisted only of evidence that had been presented at trial (see People v. Schiliro, 179 A.D.2d 693, 694, 578 N.Y.S.2d 259 ). Juror number nine also testified that she heard juror number two state that he had looked up the defendant and he was a "bad guy." However, there was no indication as to why the defendant was a "bad guy," and there was no evidence as to how many jurors heard this statement (see People v. Marsden, 130 A.D.3d 945, 947, 16 N.Y.S.3d 563 ). Further, juror number nine confirmed that this statement did not have any bearing on her decision, and juror number two testified that any research he conducted did not affect his view of the evidence or his verdict. Under the circumstances, the defendant failed to demonstrate a likelihood of prejudice to a substantial right so as to warrant setting aside the verdict (see CPL 330.30[2] ; 330.40[2][g]; People v. Marsden, 130 A.D.3d at 947, 16 N.Y.S.3d 563 ; People v. Lemay, 69 A.D.3d at 758, 894 N.Y.S.2d 63 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
CONNOLLY, J.P., MALTESE, WOOTEN and DOWLING, JJ., concur.