| People v Morrison |
| 2012 NY Slip Op 02713 [94 AD3d 913] |
| April 10, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Fernando Morrison, Jr., Appellant. |
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William V. Grady, District Attorney, Poughkeepsie, N.Y. (Bridget Rahilly Steller ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Dolan, J.),rendered June 4, 2010, convicting him of assault in the first degree, criminal mischief in thefourth degree, and stalking in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
"[N]ot every misstep by a juror rises to the inherently prejudicial level at which reversal isrequired automatically" (People v Brown, 48 NY2d 388, 394 [1979]; see People vClark, 81 NY2d 913, 914 [1993]; People v Giarletta, 72 AD3d 838, 839 [2010]; People v Dombroff, 44 AD3d 785,787 [2007]; People v Simon, 224 AD2d 458 [1996]). "Because juror misconduct can takemany forms, no ironclad rule of decision is possible. In each case the facts must be examined todetermine the nature of the material placed before the jury and the likelihood that prejudicewould be engendered" (People v Brown, 48 NY2d at 394; see People v Giarletta,72 AD3d at 839; People v Dombroff, 44 AD3d at 787; People v Simon, 224AD2d at 458).
Here, after being alerted to comments made by a juror in the jury room before any evidencehad been presented, the trial court, with approval of the defense counsel and the prosecutor,properly carried out a complete individual inquiry of each juror and alternate to ascertain thenature and extent of the comments. The responses of the jurors and alternates established thatthey had not made any premature determination as to the guilt or innocence of the defendant, norhad they assigned any burden of proof to the defendant. The trial court was in the best position toassess the effect of the comments on the individual jurors, and its determination that a mistrialwas not warranted will not be disturbed (see People v Dombroff, 44 AD3d at 787; People v McDonald, 40 AD3d1125 [2007]; People vKennedy, 11 AD3d 561 [2004]; People v Simon, 224 AD2d at 458).
The defendant's contention that the evidence was legally insufficient to support hisconviction of assault in the first degree is unpreserved for appellate review (see People v Hawkins, 11 NY3d484, 492 [2008]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to disprove the defendant's justification defense and to establish the defendant's guilt ofassault in the first degree beyond a [*2]reasonable doubt.Moreover, upon our independent review pursuant to CPL 470.15 (5), we are satisfied that theverdict of guilt on that count was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 85[1982]). Dillon, J.P., Angiolillo, Florio and Cohen, JJ., concur.