| People v Jerge |
| 2011 NY Slip Op 09372 [90 AD3d 1486] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Timothy L.Jerge, Appellant. |
—[*1] Lori Pettit Rieman, District Attorney, Little Valley, for respondent.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), renderedMarch 14, 2011. The judgment convicted defendant, upon a jury verdict, of sexual abuse in thesecond degree, course of sexual conduct against a child in the second degree and endangering thewelfare of a child.
It is hereby ordered that the judgment so appealed from is reversed on the law and a new trialis granted.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, sexual abuse in the second degree (Penal Law § 130.60 [2]) and course of sexualconduct against a child in the second degree (§ 130.80 [1] [b]). We agree with defendantthat County Court erred in denying his motion to set aside the verdict based on juror misconduct.
CPL 330.30 provides in relevant part that a court may, upon motion of the defendant, setaside a verdict on the ground that "during the trial there occurred, out of the presence of thecourt, improper conduct by a juror . . . , which may have affected a substantial rightof the defendant and which was not known to the defendant prior to the rendition of the verdict"(CPL 330.30 [2]). As a general rule, "a jury verdict may not be impeached by probes into thejury's deliberative process; however, a showing of improper influence provides a necessary andnarrow exception to the general proposition" (People v Maragh, 94 NY2d 569, 573[2000]; see People v Brown, 48 NY2d 388, 393 [1979]; People v Scerbo, 59 AD3d 1066,1068 [2009], lv denied 12 NY3d 821 [2009]). Improper influence encompasses "evenwell-intentioned jury conduct which tends to put the jury in possession of evidence notintroduced at trial" (Brown, 48 NY2d at 393).
"Of course, not every misstep by a juror rises to the inherently prejudicial level at whichreversal is required automatically" (id. at 394). Rather, "[e]ach case must be examined onits unique facts to determine the nature of the misconduct and the likelihood that prejudice wasengendered" (People v Clark, 81 NY2d 913, 914 [1993]; see Scerbo, 59 AD3d at1068). Juror misconduct constitutes reversible error where "(1) jurors conduct[ ] personalspecialized assessments not within the common ken of juror experience and knowledge (2)concerning a material issue in the case, and (3) communicat[e] that expert opinion to the rest ofthe jury panel with the force of private, untested truth as though it were evidence"(Maragh, 94 NY2d at 574; [*2]see People v Santi, 3 NY3d 234, 249 [2004]).
Here, the evidence at the post-trial hearing on defendant's CPL 330.30 motion establishedthat two jurors interjected their professional knowledge into the jury deliberations by voicingprofessional opinions that were not the subject of expert testimony at trial (see Maragh,94 NY2d at 575-576). The subject jurors—a caseworker employed by a county departmentof social services (DSS) with a bachelor's degree in social work and a licensed substance abusecounselor with a bachelor's degree in human services—conveyed to the rest of the jurypanel that they had professional experience working with or counseling child victims of sexualabuse. According to the two jurors who testified at the hearing concerning the subject jurors, theDSS caseworker advised the jury that she worked in a child protective capacity. One of thetestifying jurors recalled that, when members of the jury voiced concerns about the victim'scredibility based upon, inter alia, her inability to recall dates or details about the sexual abuse, thedelay in reporting, and the victim's failure to avoid defendant, the subject jurors made statementsto the effect that "we deal with this every day," and "this is the pattern of how these thingsnormally take place." That juror explained that "it was a lot like [the subject jurors] weretestifying in the jury room," and he expressly testified that he was swayed by the opinions of thesubject jurors in voting to convict defendant. The other testifying juror similarly recalled that,when members of the jury questioned the victim's credibility, the subject jurors responded, "thatis how a sexually abused victim would act and that's normal behavior." She testified that thesubject jurors said that it was "normal" for sexual abuse victims to "block . . . out"the abuse and that, as a result, "they wouldn't be able to remember" specific dates, times andplaces. According to that juror, one of the subject jurors went so far as to tell the jury that, whenhe had worked with child victims of sexual abuse, "this is how they would act." The jurortestified that she changed her vote from acquittal to conviction based on the opinions of thesubject jurors.
In denying defendant's CPL 330.30 motion, the court erred in concluding that it was"common knowledge" that victims of sexual abuse may both delay reporting and be unable torecall specifics of the abuse. The behavior and response of a victim of sexual abuse is "not withinthe common ken of juror experience and knowledge" (Maragh, 94 NY2d at 574; seePeople v Taylor, 75 NY2d 277, 289 [1990]). Indeed, it is not uncommon for courts to permitexpert testimony on precisely the subject at issue here, i.e., the behavior of a victim of sexualabuse (see e.g. People v Carroll, 95 NY2d 375, 387 [2000]; Taylor, 75 NY2d at289; People v Torres, 78 AD3d866 [2010]; People v Gregory,78 AD3d 1246, 1247 [2010], lv denied 16 NY3d 831 [2011]; People vWellman, 166 AD2d 302 [1990], lv denied 78 NY2d 958 [1991]).
We thus agree with defendant that the subject jurors offered improper professional opinionsthat were not the subject of expert testimony and were not subject to cross-examination, therebydepriving defendant of a fair trial (see Maragh, 94 NY2d at 575-576; People vStanley, 87 NY2d 1000, 1001-1002 [1996]). Indeed, the subject juror comments in this caseare particularly problematic because they stated not only that sexual abuse victims may delayreporting or be unable to recall specifics of the abuse, which may be the proper subject of experttestimony (see Gregory, 78 AD3d at 1247), but they also went a step further and opinedthat, "based upon their professional experience, [the victim] acted like a victim of sexual abuse."That was improper (see Carroll, 95 NY2d at 387).
In light of our determination that reversal is required, we need not address defendant'sremaining contentions.
All concur except Fahey, J., who dissents and votes to modify in accordance with the [*3]following memorandum.
Fahey, J. (dissenting). I respectfully dissent because I do not agree with the majority thatCounty Court erred in denying defendant's post-trial motion pursuant to CPL 330.30 (2) seekingto set aside the verdict based on juror misconduct. I dissent insofar as the majority concludes thatreversal is required on that ground. Nevertheless, I would vote to modify the judgment as amatter of discretion in the interest of justice, and on the law, by reversing that part convictingdefendant of sexual abuse in the second degree under count two of the indictment inasmuch asthat count was rendered duplicitous by the testimony at trial, as I shall discuss herein. I woulddismiss that count without prejudice to the People to re-present any appropriate charge under thatcount to another grand jury.
"Generally, a jury verdict may not be impeached by probes into the jury's deliberativeprocess," but CPL 330.30 embodies the "narrow exception to [that] general proposition"(People v Maragh, 94 NY2d 569, 573 [2000]). That statute provides, in relevant part, thatthe court may, upon motion of the defendant, set aside the verdict on the ground "[t]hat duringthe trial there occurred, out of the presence of the court, improper conduct by a juror, or improperconduct by another person in relation to a juror, which may have affected a substantial right ofthe defendant and which was not known to the defendant prior to the rendition of the verdict"(CPL 330.30 [2]).
Here, at the hearing on his CPL 330.30 motion, defendant presented the testimony of twojurors. The first testifying juror stated on direct examination that three other jurors, i.e., jurorsNos. 27, 68 and 98 (collectively, subject jurors), said "we deal with this every day" and "this isthe pattern of how these things normally take place." Based on the context of the first juror'stestimony, the testimony appears to indicate that the subject jurors were familiar with victims ofsexual abuse. Juror No. 27 worked as the head strength and conditioning coach in a universityathletic department, juror No. 68 was a caseworker with the Cattaraugus County Department ofSocial Services, and juror No. 98 worked as a "substance abuse, mental health counselor." Thefirst testifying juror did not state that the subject jurors had indicated that they counseled victimsof sexual abuse, but maintained that the subject jurors said that their knowledge was based upontheir professional backgrounds in dealing with such issues. The first testifying juror alsoindicated that his vote was influenced by the comments of the subject jurors during deliberations,and that he was the last juror to vote to convict defendant.
The cross-examination of the first testifying juror confirmed that he was influenced by thecomments of the subject jurors, and explained the basis, or lack thereof, for his reliance on thosejurors. The first testifying juror acknowledged that he learned of the backgrounds of the subjectjurors during voir dire, and indicated that he "just assumed" that one of the opinions expressed byjuror No. 68 during deliberations "was because of her professional experience." Indeed, the firsttestifying juror agreed that the subject jurors never indicated during deliberations that theyworked with or counseled sexual abuse victims, and he concluded his testimony oncross-examination with an expression of remorse over having been the last of the jurors tochange his mind and vote to convict defendant.
For her part, the second testifying juror stated at the hearing that juror Nos. 68 and 98 hadindicated during deliberations that they had a specialized background in sexual abuse issues andhad worked with sexually abused children. The second testifying juror indicated that assurancesof juror Nos. 68 and 98 assuaged her concerns with parts of the victim's testimony, and that sheeventually relied on the knowledge and opinions of juror Nos. 68 and 98 in changing her votefrom acquittal to conviction.
On cross-examination, however, the second testifying juror, who was not a holdout juror,[*4]was equivocal as to whether juror Nos. 68 and 98 influencedher vote. The second testifying juror denied "saying that [she] gave somebody's opinion morecredibility than somebody else's," and contended that she "ha[s] [her] own mind," "listened"during deliberations and "took [the opinion in question] into [her] own mind and processed it."
Subsequent to the testimony of defendant's witnesses at the CPL 330.30 hearing, and at thePeople's request, the court denied the motion on the ground that defendant failed to meet hisburden of proof even in the absence of testimony from witnesses yet to be presented by thePeople. The court later issued a written decision in which it determined "that the complained ofconduct . . . does not rise to the level of juror misconduct." That conclusion wasbased, at least in part, on the court's finding that the first testifying juror "admitted that heregretted his verdict and conceded that he did not hear specific reference to any one juror'sprofessional experience." In view of its citations to, inter alia, People v Rodriguez (100NY2d 30 [2003]), People vRobinson (1 AD3d 985 [2003], lv denied 1 NY3d 633 [2004], 2 NY3d 805[2004]) and People v Stevens (275 AD2d 902 [2000], lv denied 96 NY2d 807[2001]), and its finding that the second testifying juror "adamantly said she made up her ownmind on the verdict," the court also appeared to conclude that the conduct at issue did notprejudice defendant (cf. People vConcepcion, 17 NY3d 192, 195 [2011]).
"In order to prevail on [his] motion, defendant was required to establish 'by a preponderanceof the evidence that improper conduct by a juror prejudiced a substantial right of' defendant" (People v Carmichael, 68 AD3d1704, 1705 [2009], lv denied 14 NY3d 798 [2010]; see CPL 330.40 [2] [g])."The trial court is invested with discretion and post[-]trial fact-finding powers to ascertain anddetermine whether the activity during deliberations constituted misconduct and whether theverdict should be set aside and a new trial ordered" (Maragh, 94 NY2d at 574; seeRodriguez, 100 NY2d at 35), and, under these circumstances, I cannot agree with themajority that the disputed activity during deliberations warrants impeachment of the verdict.
Put simply, the testimony of the first testifying juror, who seemed to have second thoughtsabout the verdict and who could not state that any of the subject jurors had indicated duringdeliberations that they worked with or counseled sexual abuse victims, does not support a findingof juror misconduct (see generallyPeople v Santi, 3 NY3d 234, 249-250 [2004]). "The court's determination that there wasno misconduct . . . must be afforded great weight" (People v Brown, 278AD2d 920 [2000], lv denied 96 NY2d 781 [2001]), and there is no reason to disturb it onthe basis of the testimony of the first testifying juror.
Even assuming, arguendo, that the testimony of the second testifying juror establishes jurormisconduct (see generally Santi, 3 NY3d at 249; Maragh, 94 NY2d at 574), Iconclude under these circumstances there was no showing of prejudice to a "substantial right" ofdefendant as a result of that misconduct (CPL 330.30 [2]; see Carmichael, 68 AD3d at1705-1706). Inasmuch as the second testifying juror, who was not a holdout juror, admitted oncross-examination that she had an independent mind and thought process with respect to theverdict, I cannot conclude that defendant established that the second testifying juror based herverdict on something other than the evidence presented at trial (cf. Carmichael, 68 AD3dat 1705-1706; see generally Robinson, 1 AD3d at 986). Thus, in my view, defendant didnot meet his burden of showing "by a preponderance of the evidence" that the conduct at issueprejudiced a substantial right of defendant (CPL 330.40 [2] [g]; see Rodriguez, 100NY2d at 35; Carmichael, 68 AD3d at 1705-1706), and there is no reason to disturb thecourt's determination on that basis (see Brown, 278 AD2d 920).
I turn now to the remaining issues not addressed by the majority in light of its [*5]determination with respect to defendant's post-trial motion pursuantto CPL 330.30 (2). Defendant challenges the procedure employed by the court in responding to ajury note, specifically contending that the court erred in issuing supplemental instructions to thejury in his absence. Inasmuch as defense counsel was given notice of the note, its contents andthe court's intended response thereto, "[d]efendant therefore was required to register an objectionin order to preserve for our review his challenge to the procedure employed by the court inresponding to the jury note[ ], 'at a time when any error by the court could have been obviated bytimely objection' " (People v Rivera,83 AD3d 1370, 1370-1371 [2011], quoting People v Starling, 85 NY2d 509, 516[1995]; see People v Kadarko, 14NY3d 426, 429 [2010]). I would not exercise my power to address that contention as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Contrary todefendant's further contention, defense counsel was not ineffective in failing to object to theprocedure employed by the court in responding to the note. Defendant failed " 'to demonstrate theabsence of strategic or other legitimate explanations' for [defense] counsel's allegedshortcomings" (People v Benevento, 91 NY2d 708, 712 [1998], quoting People vRivera, 71 NY2d 705, 709 [1988]; see generally People v Baldi, 54 NY2d 137, 147[1981]).
Defendant failed to preserve for our review his contention that the court's Allencharge was coercive, having failed to object to the charge on that ground (Allen v UnitedStates, 164 US 492 [1896]; seePeople v Vassar, 30 AD3d 1051 [2006], lv denied 7 NY3d 796 [2006]). In anyevent, that contention lacks merit (seePeople v Roman, 85 AD3d 1630, 1631 [2011], lv denied 17 NY3d 821 [2011])."Furthermore, '[b]ecause the Allen charge was not improper, the defendant's ineffectiveassistance of counsel claim, [insofar as it is] based . . . on his attorney's failure toobject to the charge, is without merit' " (id.).
Defendant also failed to preserve for our review his contention that the indictment isduplicitous (see People v Becoats,17 NY3d 643, 651 [2011]; People vHeard, 72 AD3d 1630 [2010], lv denied 15 NY3d 852 [2010]). In any event,that contention is moot with respect to counts one and four of the indictment inasmuch asdefendant was acquitted of those counts (see People v Haberer, 24 AD3d 1283 [2005], lv denied 7NY3d 756, 848 [2006]). I would, however, exercise my power to review defendant's contentionwith respect to count two of the indictment as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]), because I agree with defendant that count two, charging himwith sexual abuse in the second degree (Penal Law § 130.60 [2]), was rendered duplicitousby the testimony at trial (see People vBennett, 52 AD3d 1185, 1186 [2008], lv denied 11 NY3d 734 [2008]). I wouldtherefore modify the judgment accordingly, as set forth herein (see id.; People v Bracewell, 34 AD3d1197, 1198-1199 [2006]).
Finally, I have reviewed defendant's remaining contentions and conclude that none requiresreversal or further modification of the judgment. Present—Scudder, P.J., Centra, Fahey,Peradotto and Lindley, JJ. [Prior Case History: 30 Misc 3d 1240(A), 2011 NY Slip Op50414(U).]