| People v Marsden |
| 2011 NY Slip Op 07451 [88 AD3d 909] |
| October 18, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Ricardo Marsden, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Cristin N.Connell of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Berkowitz,J.), rendered August 8, 2008, convicting him of murder in the second degree (two counts),burglary in the first degree (two counts), attempted robbery in the first degree (two counts),attempted robbery in the second degree, criminal possession of a weapon in the second degree,and criminal possession of a weapon in the third degree, upon a jury verdict, and imposingsentence. The appeal brings up for review the denial, after a hearing (LaPera, J.), of that branchof the defendant's omnibus motion which was to suppress his statements to law enforcementofficials.
Ordered that the matter is remitted to the County Court, Nassau County, to hear and report onthe defendant's motion pursuant to CPL 330.30 (2) to set aside the verdict based upon allegationsof juror misconduct, and the matter is held in abeyance in the interim. The County Court shallhear and report forthwith.
We agree with the defendant that the County Court improperly denied, without a hearing, thedefendant's motion pursuant to CPL 330.30 (2) to set aside the verdict based upon allegations ofjuror misconduct. "Generally, a jury verdict may not be impeached by probes into the jury'sdeliberative process; however, a showing of improper influence provides a necessary and narrowexception to the general proposition" (People v Maragh, 94 NY2d 569, 573 [2000];see People v Brown, 48 NY2d 388, 393 [1979]; People v Davis, 86 AD3d 59, 64 [2011], lv denied 17NY3d 805 [2011]). "Improper influence includes even 'well-intentioned jury conduct which tendsto put the jury in possession of evidence not introduced at trial' " (People v Maragh, 94NY2d at 573, quoting People v Brown, 48 NY2d at 393). "Because juror misconduct cantake many forms, no ironclad rule of decision is possible. In each case the facts must beexamined to determine the nature of the material placed before the jury and the likelihood thatprejudice would be engendered" (People v Brown, 48 NY2d at 394; see People vMaragh, 94 NY2d at 573-574; People v Davis, 86 AD3d at 64-65).
Here, the defendant's motion was predicated upon, inter alia, an affidavit from juror number8, averring that the other jurors had exerted verbal pressure upon her to render a verdict of guilty,that two jurors discussed outside information that they learned from a newspaper and onlinesearches regarding the trial and its participants, and that one juror had conferred with his priest.[*2]
Juror number 8's claim that the other jurors exerted verbalpressure upon her to render a verdict of guilty went to the tenor of the deliberations, and did notconstitute a basis to set aside the verdict (see People v Anderson, 249 AD2d 405, 406[1998]; People v McKenzie, 173 AD2d 493, 494 [1991]). However, juror number 8'ssworn allegations of outside influence prior to and during deliberations warrants a hearing(see People v Irizarry, 83 NY2d 557, 561 [1994]; People v Richardson, 173AD2d 870 [1991]) to determine "the nature of the material placed before the jury and thelikelihood that prejudice would be engendered" (People v Testa, 61 NY2d 1008, 1009[1984]; see People v Giarletta, 72AD3d 838 [2010]). Accordingly, we remit the matter to the County Court, Nassau County,to hear and report on the defendant's motion forthwith.
We decide no other issues at this time. Skelos, J.P., Chambers, Sgroi and Miller, JJ., concur.