| People v Giarletta |
| 2010 NY Slip Op 03143 [72 AD3d 838] |
| April 13, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Ralph Giarletta, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and AnneGrady of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Collini,J.), rendered April 16, 2008, convicting him of endangering the welfare of a child, upon a juryverdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
Pursuant to Criminal Procedure Law § 330.30 (2), a court may set aside a verdictbased upon juror misconduct which, inter alia, "may have affected a substantial right of thedefendant." Here, at the hearing conducted on his motion to set aside the verdict, the defendantestablished by a preponderance of the evidence (see CPL 330.40 [2] [g]; People v McDonald, 40 AD3d1125 [2007]) that juror number nine engaged in misconduct in direct contravention of theSupreme Court's instructions by communicating with her sister via text message and cell phoneduring the trial about particular information relating to the defendant's guilt or innocence, andsharing those communications with other jurors. Although "not every misstep by a juror rises tothe inherently prejudicial level at which reversal is required automatically" (People vBrown, 48 NY2d 388, 394 [1979]), and each case must be "examined on its unique facts todetermine the nature of the misconduct and the likelihood that prejudice was engendered"(People v Clark, 81 NY2d 913, 914 [1993]; see People v Rodriguez, 100 NY2d30, 35 [2003]; People v Lemay, 69AD3d 757 [2010]), the misconduct here created a significant risk that a substantial right ofthe defendant was prejudiced (seePeople v Romano, 8 AD3d 503, 504 [2004]; People v Dashnau, 187 AD2d 966,967 [1992]; People v Thomas, 184 AD2d 1069 [1992]; People v Magnano, 175AD2d 639 [1991]). Consequently, the judgment must be reversed and a new trial ordered. Fisher,J.P., Florio, Belen and Hall, JJ., concur.