| People v Holloway |
| 2008 NY Slip Op 10193 [57 AD3d 404] |
| December 30, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Shamar Holloway, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Timothy C. Stone of counsel), forrespondent.
Judgment, Supreme Court, New York County (Michael R. Ambrecht, J.), rendered July 2,2003, convicting defendant, after a jury trial, of criminal sale of a controlled substance in thethird degree, and sentencing him to a term of 6 to 12 years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 349 [2007]). There is nobasis for disturbing the jury's determinations concerning credibility. Defendant's identity wasconfirmed by the recovery of prerecorded buy money from his pocket upon his arrest, anddefendant's argument that the evidence raises doubts about whether such a recovery was evermade is unpersuasive.
After a thorough inquiry, the court properly discharged, as grossly unqualified, a juror whoinformed the court that he had observed the three police witnesses at lunch together, had seen oneof the officers holding a photocopy of the prerecorded buy money, and thought that the officerhad lied when he testified that he had not spoken to the other witnesses about the case duringlunch. The juror not only formed a premature opinion in a manner that would prevent him fromserving as a fair and impartial juror (seePeople v Rosado, 53 AD3d 455, 457 [2008]), but did so on the basis of information that,although collateral (as discussed below), was not in evidence.
The court properly exercised its discretion in denying the defense request to call thedischarged juror, and to recall one of the officers, to testify about the lunchtime incident. Thistestimony would have had nothing to do with the crimes charged, but would have insteadconstituted extrinsic evidence on a collateral matter, introduced for the sole purpose ofimpeaching credibility (see People v Pavao, 59 NY2d 282, 288-289 [1983]). Defendant'stheory under which this testimony would allegedly fall outside the collateral matter rule isspeculative. Moreover, the court did permit the defense to recall the officer who had been seenholding the copy of the buy money during lunch. That officer provided an innocuous explanationfor the lunchtime incident, and there is no reason to believe that testimony by the juror or furthertestimony by the other officer would have affected the verdict.
Defendant's claim that he was constitutionally entitled to call the juror or recall the other[*2]officer is unpreserved (see People v Lane, 7 NY3d 888, 889 [2006]), and we decline toreview it in the interest of justice. As an alternative holding, we also reject it on the merits(see Crane v Kentucky, 476 US 683, 689-690 [1986]; Delaware v Van Arsdall,475 US 673, 678-679 [1986]). Finally, any error in these rulings was harmless under thestandards for both constitutional and nonconstitutional error.
The court properly permitted the prosecution to introduce $188 recovered from defendant'spocket that was not prerecorded buy money. Since defendant was charged on an accomplicetheory with two additional sales, the money was admissible as evidence tending to prove that hewas a participant in a drug-selling operation with his companions (see People v Valentine, 7 AD3d275 [2004], lv denied 3 NY3d 682 [2004]).
We perceive no basis for reducing the sentence. Concur—Lippman, P.J., Gonzalez,Nardelli, Buckley and Acosta, JJ.