| People v Douglas |
| 2008 NY Slip Op 09665 [57 AD3d 1105] |
| December 11, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v James Douglas,Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Ulster County (Bruhn, J.), renderedMarch 21, 2007, upon a verdict convicting defendant of the crimes of criminal sale of a controlledsubstance in the third degree and criminal possession of a controlled substance in the third degree.
After a jury found defendant guilty of both criminal sale and criminal possession of a controlledsubstance in the third degree, he moved pursuant to CPL 330.30 (2) to set aside the verdict basedupon evidence that, during the trial, a juror had improper out-of-court conversations about the casewith a third party. County Court held a hearing and denied defendant's motion, crediting the juror'stestimony that he had no knowledge of any prejudicial information as a result of the out-of-courtcommunication. Defendant was sentenced as a second felony offender to two concurrent prison termsof 12 years and a three-year period of postrelease supervision, and he now appeals.
Defendant contends initially that the evidence was legally insufficient to identify him as the personwho sold cocaine to a confidential informant because the informant did not testify. An undercoverpolice officer, however, witnessed the sale and identified defendant. The officer, who was in theinformant's vehicle only a few inches away from the informant and defendant at the time of the sale,testified that he saw defendant approach the prearranged location in a white [*2]SUV, exit the SUV and come over to the informant's vehicle. The officerthen watched as the informant passed money to defendant and received, in exchange, a packet of whatwas later determined to be cocaine. Thus, the record contains legally sufficient evidence linkingdefendant to the sale in question (see Peoplev Ellis, 45 AD3d 1048, 1050 [2007], lv denied 10 NY3d 764 [2008]; People v Stephens, 31 AD3d 890, 891[2006], lv denied 7 NY3d 870 [2006]; People v Golden, 24 AD3d 806, 807 [2005], lv denied 6 NY3d813 [2006]). In addition, the undercover officer testified that he recognized defendant at the time of thesale as someone whom he had observed on a previous occasion. Also, the sale was monitored from adistance by backup officers, one of whom testified that defendant was known to him and, when hedrove by the site immediately after the sale was complete, he observed defendant standing nearby. Thebackup officer also testified that he wrote down the license number of the white SUV and found that itwas registered to defendant's girlfriend. Viewing this evidence in a neutral light and accordingappropriate deference to the jury's assessment of witness credibility, we cannot conclude that theverdict was against the weight of the evidence (see People v Folk, 44 AD3d 1095, 1097 [2007], lv denied 9NY3d 1006 [2007]; People v Williams,25 AD3d 875, 875 [2006], lv denied 6 NY3d 854 [2006]; People v Golden, 24AD3d at 807).
Nor are we persuaded by defendant's argument that the juror's misconduct deprived him of a fairtrial. While CPL 330.30 (2) provides that a verdict may be set aside upon a showing that a juror'simproper conduct has "affected a substantial right of the defendant" (see People v Clark, 81NY2d 913, 914 [1993]), "juror misconduct does not entitle a defendant to a new trial" in the absenceof a showing of prejudice (People v Irizarry, 83 NY2d 557, 561 [1994]). "[N]ot every misstepby a juror rises to the inherently prejudicial level at which reversal is required" (People vBrown, 48 NY2d 388, 394 [1979]), and the trial court is afforded wide discretion in determining aclaim of improper juror influence (see People v Genovese, 10 NY2d 478, 482 [1962];People v Simmons, 213 AD2d 433, 433 [1995], lv denied 86 NY2d 741 [1995]).Deferring to County Court's assessment of credibility here (see e.g. People v Cabrera, 305AD2d 263, 263 [2003], lv denied 100 NY2d 560 [2003]), we find evidence in the recordsupporting the court's determination that the juror had no knowledge of any prejudicial information.Thus, it was not an abuse of discretion to deny defendant's motion to set aside the verdict (seePeople v Rodriguez, 100 NY2d 30, 35 [2003]; People v Fogarty, 12 AD3d 854, 857 [2004], lv denied 4NY3d 763 [2005]; People v Martin, 177 AD2d 715, 716 [1991], lv denied 79NY2d 921 [1992]).
We have considered defendant's remaining arguments, including the contention that his sentence isharsh and excessive, and find them to be without merit.
Peters, J.P., Lahtinen, Kavanagh and Stein, JJ., concur. Ordered that the judgment is affirmed.