| People v Beckingham |
| 2015 NY Slip Op 09144 [134 AD3d 1255] |
| December 10, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Timothy Beckingham, Appellant. |
Andrea G. Hirsch, New York City, for appellant.
John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), forrespondent.
Peters, P.J. Appeal, by permission, from an order of the County Court of OtsegoCounty (Burns, J.), entered July 14, 2014, which denied defendant's motion pursuant toCPL 440.10 to vacate the judgment convicting him of the crime of manslaughter in thefirst degree, after a hearing.
Following a jury trial, defendant was convicted of manslaughter in the first degree inconnection with the death of his wife. Upon his direct appeal, we affirmed (57 AD3d1098 [2008], lv denied 13 NY3d 742 [2009]). He thereafter moved pursuant toCPL 440.10 to vacate the judgment of conviction on the basis that, among other things, ajuror was subjected to improper outside influence. Defendant specifically claimed that,while his trial was ongoing, Eric Ashley, a sheriff's deputy assigned to the courthouse,made improper comments concerning defendant's guilt to a juror, who was Ashley'smother-in-law. County Court summarily denied the motion as well as defendant'ssubsequent motion to renew. This Court reversed, finding that defendant submittedsufficient evidence to warrant a hearing on the jury tampering issue (116 AD3d 1298[2014]). After a hearing, County Court again denied defendant's motion and, with ourpermission, defendant appeals.
Defendant initially claims that the relationship between Ashley and the jurorrendered such juror disqualified from serving. Even if defendant had preserved thisargument by raising it in his postconviction motion (see People v Nusbaum, 222AD2d 723, 724 [1995], lv denied 87 NY2d 1023 [1996]), the record reveals thatthe juror specifically disclosed this relationship to [*2]County Court during voir dire. Inasmuch as this claim isbased upon facts contained in the record and could have been, but was not, raised ondefendant's direct appeal from his judgment of conviction, it is not the proper subject of aCPL 440.10 motion (see CPL 440.10 [2] [c]; People v Bruno, 97 AD3d 986, 986-987 [2012], lvdenied 20 NY3d 931 [2012]; People v Stevens, 95 AD3d 1451, 1452 [2012], lvdenied 19 NY3d 1029 [2012]).
At the hearing on defendant's claim of improper outside influence, Ashley's two adultdaughters each testified that, at a family dinner on some unspecified date and in thepresence of the juror, Ashley stated his belief that defendant was guilty. According to theolder daughter, Ashley then urged the juror to tell the other members of the family whowere present that defendant was guilty, in response to which the juror stated, "I can't behearing this right now." The juror, on the other hand, consistently affirmed in response torepeated questioning that she did not discuss defendant's case with anyone during theweek-long trial,[FN1] nor did she hear anyone discuss thecase in her presence. Noting her obligations as a juror not to discuss the case withanyone, the juror stated that she made it a point not to see Ashley during the trial andthat, other than providing him with a ride home one evening,[FN2] she had no contact with him during thattime. According to the juror, outside influences played no part in her decision-makingprocess, and her verdict was predicated solely upon the evidence presented at trial. Theconflicting testimony presented an issue of credibility for County Court to resolve, whichassessment is "entitled to great deference on appeal" (People v Bodah, 67 AD3d 1195, 1196 [2009], lvdenied 14 NY3d 838 [2010] [internal quotation marks and citation omitted]; accord People v VanDeusen,129 AD3d 1325, 1327 [2015], lv denied 26 NY3d 972 [2015]). As thecourt's decision to credit the juror's testimony is amply supported by the record, wedecline to disturb it (see People v Bodah, 67 AD3d at 1196).
Finally, defendant's actual innocence claim, which we previously rejected (116AD3d at 1299), is not properly before us on this appeal (see CPL 470.50; 22NYCRR 800.14; see generallyMatter of Hoffler v Jacon, 72 AD3d 1183, 1186 n 4 [2010], appealdismissed 15 NY3d 768 [2010], lv denied 15 NY3d 872 [2010]).
Garry, Rose and Clark, JJ., concur. Ordered that the order is affirmed.
Footnote 1:County Court tookjudicial notice of the fact that jury selection in defendant's trial began on Monday, March6, 2006 and a verdict was rendered on Friday, March 10, 2006.
Footnote 2:The juror's act of drivingAshley home from the courthouse, without more, is not misconduct so inherentlyprejudicial as to require reversal (see People v White, 79 AD3d 1460, 1463-1464 [2010],lv denied 17 NY3d 803 [2011]; People v Turner, 210 AD2d 445,445-446 [1994], lv denied 85 NY2d 915 [1995]; see also State vLeGrand, 442 NW2d 614, 615-616 [Ct App Iowa 1989]; State v Butler, 714So 2d 877, 893-894 [Ct App La 1998]; compare Turner v Louisiana, 379 US 466[1965]).