| People v Neulander |
| 2018 NY Slip Op 04925 [162 AD3d 1763] |
| June 29, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v M. Robert Neulander, Appellant. (Appeal No.1.) |
Shapiro Arato LLP, New York City (Alexandra A.E. Shapiro of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.), rendered July30, 2015. The judgment convicted defendant, upon a jury verdict, of murder in the second degreeand tampering with physical evidence.
It is hereby ordered that the judgment so appealed from is reversed on the law and a new trialis granted.
Memorandum: These consolidated appeals arise from the death of defendant's wife in 2012.In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of murderin the second degree (Penal Law § 125.25 [1]) and tampering with physicalevidence (§ 215.40 [2]). In appeal No. 2, defendant appeals from an order denyinghis CPL article 440 motion to vacate the judgment of conviction.
In appeal No. 1, defendant contends that the conviction is not supported by legally sufficientevidence and that the verdict is contrary to the weight of the evidence with respect to both counts."Inasmuch as defendant made only a general motion for a trial order of dismissal [with respect tothe murder count], he failed to preserve for our review his challenge to the legal sufficiency ofthe evidence" with respect to that count (People v Taylor, 136 AD3d 1331, 1332 [4th Dept 2016], lvdenied 27 NY3d 1075 [2016]; see People v Gray, 86 NY2d 10, 19 [1995]). In anyevent, we conclude that defendant's contention lacks merit with respect to both counts. "It is wellsettled that, even in circumstantial evidence cases, the standard for appellate review of legalsufficiency issues is whether any valid line of reasoning and permissible inferences could lead arational person to the conclusion reached by the [jury] on the basis of the evidence at trial,viewed in the light most favorable to the People" (People v Hines, 97 NY2d 56, 62[2001], rearg denied 97 NY2d 678 [2001] [internal quotation marks omitted]; see People v Reed, 22 NY3d 530,534 [2014], rearg denied 23 NY3d 1009 [2014]; see generally People v Danielson, 9 NY3d 342, 349 [2007]).
Here, the evidence establishes that the victim died of a complex, comminuted skull fracture.The Medical Examiner testified at trial that he initially determined that the victim's death was theresult of a fall in the shower. The Medical Examiner further testified, however, that he changedhis opinion after reviewing the evidence and discussing the case with other pathologists and theprosecution, and that he now opined that the victim's death was a homicide. In addition, theprosecution introduced the testimony of several experts who opined that the victim's head injurywas caused by multiple blows, and by more force than would be expected if the victim hadsimply fallen from a standing position in the shower. The prosecution further established that thevictim sustained numerous other injuries that could not be explained by a simple fall, includingbruises on her nose, fingers and arms and abrasions on both sides of her face. Also, the hallwayand bedroom into which defendant admitted that he carried the victim contained numerous bloodspatters on various surfaces and objects, including some spatters on a sloped ceiling over six feetabove the ground.
The prosecution's experts opined that the evidence was consistent with the prosecution'stheory of the case that defendant intentionally attacked the victim, hit her in the head severaltimes with an unknown object, moved her body to the shower to make it appear that the injurieswere caused by an accident that occurred at that location, and then woke his daughter so that shecould observe him moving the victim's body back to her bedroom. The prosecution alsointroduced evidence establishing that defendant disposed of an item of clothing that he waswearing at the time of the incident and several pieces of bedding, which, along with the evidencethat defendant moved the victim's body, supported the inference that defendant was acting toconceal evidence of the crime. We conclude that, viewing the evidence in the light mostfavorable to the People, there is a "valid line of reasoning and permissible inferences [that] couldlead a rational person to the conclusion reached by the [factfinder] on the basis of the evidence attrial" (People v Williams, 84 NY2d 925, 926 [1994]; see Danielson, 9 NY3d at349), and thus that the evidence is legally sufficient with respect to both counts of the indictment(see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Furthermore, viewing the evidence in light of the elements of the crimes as charged to thejury (see Danielson, 9 NY3d at 349), we reject defendant's contention in appeal No. 1 thatthe verdict is against the weight of the evidence (see generally Bleakley, 69 NY2d at495). "Even assuming, arguendo, that a different verdict would not have been unreasonable, [wenote that] 'the jury was in the best position to assess the credibility of the witnesses and, on thisrecord, it cannot be said that the jury failed to give the evidence the weight it should beaccorded' " (People vChelley, 121 AD3d 1505, 1506 [4th Dept 2014], lv denied 24 NY3d 1218[2015], denied reconsideration 25 NY3d 1070 [2015]). Contrary to defendant'scontention, the testimony of his experts, who opined that the evidence was consistent with thedefense theory that the victim accidentally slipped and fell in the shower, does not require adifferent result. "The jury was presented with conflicting expert testimony regarding the cause ofdeath, and the record supports its decision to credit the People's expert testimony" (People v Fields, 16 AD3d 142, 142[1st Dept 2005], lv denied 4 NY3d 886 [2005]; see People v Pratcher, 134 AD3d 1522, 1525 [4th Dept 2015],lv denied 27 NY3d 1154 [2016]; see generally People v Miller, 91 NY2d 372, 380[1998]).
Defendant further contends in appeal No. 1 that the court abused its discretion in denying hismotion to set aside the verdict pursuant to CPL 330.30 (2) based on allegations of jurormisconduct. We agree with defendant, and we therefore reverse the judgment in appeal No. 1,grant the motion and grant a new trial.
CPL 330.30 (2) provides that a verdict may be set aside on the ground "[t]hat during the trialthere occurred, out of the presence of the court, improper conduct by a juror, or improper conductby another person in relation to a juror, which may have affected a substantial right of thedefendant and which was not known to the defendant prior to the rendition of the verdict"(emphasis added). Upon a hearing pursuant to CPL 330.30, "the defendant has the burden ofproving by a preponderance of the evidence every fact essential to support the motion" (CPL330.40 [2] [g]). When determining a motion to set aside a jury verdict based upon jurormisconduct, "the facts must be examined to determine . . . the likelihood thatprejudice would be engendered" (People v Brown, 48 NY2d 388, 394 [1979]; seePeople v Maragh, 94 NY2d 569, 573-574 [2000]). Thus, similar to the statutory language inCPL 210.35 (5) with respect to a motion to dismiss an indictment based upon a defect in thegrand jury proceedings (see People v Huston, 88 NY2d 400, 409 [1996]; People vSayavong, 83 NY2d 702, 709-711 [1994]), the plain language of CPL 330.30 (2) does notrequire a defendant to establish actual prejudice.
We begin by noting that, at the hearing on the CPL 330.30 motion, defendant established thatduring the trial juror number 12 engaged in text messaging with third parties about the trial.Indeed, after being selected to serve on the jury, juror number 12 received a text message fromher father that stated: "Make sure he's guilty!" During the trial, juror number 12 received a textmessage from a friend asking if she had seen the "scary person" yet. Juror number 12 responded:"I've seen him since day 1." Juror number 12 admitted at the subsequent hearing into hermisconduct that she knew that the moniker "scary person" was a reference to defendant. Anotherfriend sent juror number 12 a text message during the trial that stated: "I'm so anxious to hearsomeone testify against Jenna [defendant's daughter]." Juror number 12 responded: "No one willtestify against her! The prosecution has already given all of his witnesses, we are on the defenseside now! The prosecutor can cross examine her once she is done testifying for the defense."Later that night, the same friend replied via text message: "My mind is blown that the daughter[Jenna] isn't a suspect." Although instructed by the court numerous times to report any suchcommunication to the court, juror number 12 repeatedly failed to do so.
After the verdict, a discharged alternate juror reported to defense counsel that juror number12 had engaged in prohibited communications during the trial. Defendant moved pursuant toCPL 330.30 (2) to set aside the verdict on the ground of juror misconduct that was not known bydefendant prior to the verdict. During the prosecution's preparation of its opposition to themotion, the prosecution met with juror number 12 but she did not disclose any of the aboveimproper communications to the prosecutor, although this clearly was an opportunity to do so.Indeed, juror number 12 specifically provided some innocuous text messages as attachments toher affidavit in opposition to the motion. The improper text messages, however, were notprovided to the prosecution or the court and were in fact deleted by juror number 12 some timebefore she was ordered to turn over her phone for forensic examination. Notably, juror number12 stated under oath in her affidavit in opposition to defendant's motion that: "At alltimes throughout the trial and throughout the deliberative process I followed Judge Miller'sinstructions." This statement was patently untruthful. Moreover, when juror number 12's cellphone was the subject of a judicial subpoena duces tecum, she moved to quash thesubpoena.
Forensic examination of her cell phone revealed that juror number 12 had selectively deletedscores of messages or parts thereof and that she had deleted her entire web browsing history. Atthe hearing, juror number 12 was unable to provide any explanation for why she had done that.Indeed, the trial court found that her selective deletion of certain text messages demonstrated "aconsciousness that she had engaged in misconduct, in violation of the Court's admonitions." Thetrial court further concluded that "[i]t is worthy of note that Juror #12 deleted other messageswhich demonstrated that she understood the prohibition on speaking about this case with thirdparties." Nonetheless, the trial court concluded that there was no basis in the record to find alikelihood that juror number 12's "missteps, individually or collectively, created a substantial riskof prejudice to the defendant."
We observe that, had this juror's misconduct been discovered during voir dire or during thetrial, rather than after the verdict, the weight of authority under CPL 270.35 would havecompelled her discharge on the ground that she was grossly unqualified and/or had engaged inmisconduct of a substantial nature (seePeople v Havner, 19 AD3d 508, 508 [2d Dept 2005], lv denied 5 NY3d 789[2005] ["the trial court properly discharged a juror pursuant to CPL 270.35 after determining,based on a thorough inquiry, that the juror had disregarded its instructions by discussing the caseoutside the courtroom and then lied when questioned about the substance of the discussion"];People v Pineda, 269 AD2d 610, 611 [2d Dept 2000], lv denied 95 NY2d 802[2000]; People v Robertson, 217 AD2d 989, 990 [4th Dept 1995], lv denied 86NY2d 846 [1995]; People v Fox, 172 AD2d 218, 219-220 [1st Dept 1991], lv denied78 NY2d 966 [1991]). Here, due to juror number 12's flagrant failure to follow the court'sinstructions and her concealment of that substantial misconduct, defendant, through no fault ofhis own, was denied the opportunity to seek her discharge during trial on the ground that she wasgrossly unqualified and/or had engaged in substantial misconduct.
We reject our dissenting colleagues' attempt to characterize this as a "speculative discussionof what might have happened if the juror's misconduct had been discovered earlier." Our focus isnot on the time of discovery of the misconduct. Instead, our focus is juror number 12's failure tofollow the court's instructions, her failure to report her own misconduct and the impropercommunications that she received from others, and her concealment of that misconduct and theimproper communications, evidencing a consciousness that she had engaged in misconduct,which denied defendant the opportunity to pursue a remedy under CPL 270.35. Under thedissent's approach, a juror's flagrant disregard of court rules and admonitions and her activeconcealment of her own misconduct becomes "speculative" in the context of a CPL 330.30motion because the juror was successful in deliberately concealing and withholding themisconduct from the court and defendant until after the verdict. We conclude that there isnothing speculative about the denial of defendant's substantial right and concreteopportunity to pursue a remedy under CPL 270.35 based on the juror misconduct that ispatent on this record.
Even assuming, arguendo, that the court was correct in determining that juror number 12's"intentions were pure," we conclude that the juror's intentions are not relevant to the analysis."[E]ven well-intentioned jury conduct" may create a substantial risk of prejudice to the rights ofthe defendant (Brown, 48 NY2d at 393). Moreover, it was not necessary for defendant toshow that the juror's conduct during the trial influenced the verdict inasmuch as, "[i]f it waslikely to do so, it was sufficient to warrant the granting of the motion" (People v Pauley,281 App Div 223, 226 [4th Dept 1953]).
In summary, the evidence at the hearing established, inter alia, that juror number 12 receiveda message from her father that arguably implored her to ensure defendant's conviction, repeatedlydisregarded the court's instructions, and actively concealed and was untruthful about hernumerous violations of the court's instructions. These facts were not controverted at the hearing.We conclude that every defendant has a right to be tried by jurors who follow the court'sinstructions, do not lie in sworn affidavits about their misconduct during the trial, and do notmake substantial efforts to conceal and erase their misconduct when the court conducts aninquiry with respect thereto. These rights are substantial and fundamental to the fair and impartialadministration of a criminal trial. Presented with the totality of the circumstances here, we thusconclude that defendant established by a preponderance of the evidence that juror number 12engaged in substantial misconduct that "created a significant risk that a substantial right of. . . defendant was prejudiced" (People v Giarletta, 72 AD3d 838, 839 [2d Dept 2010], lv denied15 NY3d 750 [2010]). As a result, the judgment must be reversed and a new trialgranted.
Contrary to the dissent's characterization of our holding, we do not fashion a rule that "aconviction must be reversed any time that a juror's family member or friend mentions a trial tothat juror." However, we do conclude that, in this case, a new trial is required because jurornumber 12 received a message during the trial from her father imploring her to "Make sure[defendant's] guilty!," and there were numerous other improper communications betweenjuror number 12 and her friends directly concerning specific issues in the trial, which jurornumber 12 failed to report and then actively concealed and lied about under oath during thecourt's inquiry into the misconduct.
In light of our determination, we do not address defendant's remaining contentions in appealNo. 1, and we dismiss as moot defendant's appeal from the order in appeal No. 2 (see People v Dealmeida, 124 AD3d1405, 1407 [4th Dept 2015]).
All concur except Smith and Winslow, JJ., who dissent and vote to affirm in the followingmemorandum.
Smith and Winslow, JJ. (dissenting). We disagree with the majority's conclusion in appealNo. 1 that a new trial is required on the ground that County Court erred in denying defendant'smotion to set aside the verdict pursuant to CPL article 330 based on allegations of jurormisconduct. Inasmuch as we have considered defendant's remaining contentions in appeal No. 1and conclude that they do not require reversal or modification of the judgment, we respectfullydissent and vote to affirm in that appeal.
The Criminal Procedure Law provides that a verdict may be set aside or modified on theground "[t]hat during the trial there occurred, out of the presence of the court, improper conductby a juror, or improper conduct by another person in relation to a juror, which may have affecteda substantial right of the defendant and which was not known to the defendant prior to therendition of the verdict" (CPL 330.30 [2]). It is well settled, however, that " 'not everymisstep by a juror rises to the inherently prejudicial level at which reversal is requiredautomatically' " (People v Clark, 81 NY2d 913, 914 [1993], quoting People vBrown, 48 NY2d 388, 394 [1979]). Whether reversal is required is a "fact-intensive" issue,and the trial court is "vested with discretion in deciding CPL 330.30 (2) motions" (People vRodriguez, 100 NY2d 30, 35 [2003]). Finally, and of paramount importance, "[a]bsent ashowing of prejudice to a substantial right, . . . proof of juror misconduct does notentitle a defendant to a new trial" (People v Irizarry, 83 NY2d 557, 561 [1994]).
Here, the court conducted a thorough hearing on defendant's motion, and we agree with themajority and defendant that the evidence at the hearing established that juror number 12 failed tofollow the court's instructions concerning communicating with outside parties about the caseprior to rendering a verdict by sending and receiving text messages regarding the trial and theevents surrounding it, and by misrepresenting her actions when questioned about them. Inaddition, the evidence at the hearing established that juror number 12 deleted the browser historyand some of the text messages on her cell phone, and we agree with the court that she did so inan attempt to cover up those communications. Contrary to defendant's further contention and themajority's conclusion, however, the court did not abuse its discretion in denying the motion to setaside the verdict based on juror number 12's conduct. The People performed a forensic evaluationof the juror's cell phone and were able to retrieve the deleted messages. Those messages, and theundeleted ones that were also introduced in evidence at the hearing, included messages in whichjuror number 12 told others that she was nervous because the case was so serious, and another inwhich she said that "in reality someone's life is in our hands! It's our decision to say if he is guiltyor not! We could send an innocent man to prison or put a murderer away!" In addition, the jurorrepeatedly refused to discuss the case in her texts, she indicated that she would not do so until thetrial ended, and she expressed her commitment to hearing all the evidence before reaching anyconclusion. Furthermore, there is no evidence that the juror was exposed to any evidence thatwas excluded from the trial.
We agree with the majority that juror number 12 unquestionably attempted to hide theseinteractions and then testified under oath that she did not violate the court's directives not todiscuss the case. Nevertheless, the court concluded that, although the juror engaged inmisconduct, the evidence established that she "took her role as a juror seriously," and decided thecase "based on the evidence alone." In addition, the evidence at the hearing established that thejuror received communications that may be "characterize[d] as 'inflammatory.' [Juror number 12,h]owever, . . . testified unequivocally that she was not affected by these comments,that she did not discuss the [facts of] the case with anyone during the trial, and that she haddecided the case impartially, based only on the evidence" (People v Wilson, 93 AD3d 483, 485 [1st Dept 2012], lvdenied 19 NY3d 978 [2012]). We perceive no reason to disturb the court's credibilitydeterminations, and we agree with its conclusion that reversal is not required here becausedefendant failed to establish any prejudice, or likelihood of prejudice, from the juror'smisconduct (see Rodriguez, 100 NY2d at 36; People v Richardson, 185 AD2d1001, 1002 [2d Dept 1992], lv denied 80 NY2d 976 [1992]). The misconduct of the jurordoes not require setting aside or modifying the verdict unless it "may have affected a substantialright of the defendant" (CPL 330.30 [2]). Here, only speculation supports the conclusion that thejuror's misconduct had such an impact and, indeed, all of the evidence indicates that jurornumber 12 decided the case solely on the evidence.
We respectfully reject the majority's speculative discussion of what might have happened ifthe juror's misconduct had been discovered earlier, and we instead confine our review to the factsin the record. Criminal Procedure Law § 270.35 (1) applies only to conductoccurring "before the rendition of [the] verdict." Consequently, because the active concealmentand misrepresentation by juror number 12 upon which the majority relies occurred after the trial,it cannot support the conclusion that defendant was somehow deprived of an opportunity to moveto discharge the juror pursuant to that statute. The majority's conclusion that juror number 12concealed the misconduct of others is not supported by the record. There is no indication ofmisconduct by anyone else, and none of those who communicated with the juror is alleged tohave violated any law or court directive. In addition, we note that the majority's determinationcreates a rule that a conviction must be reversed any time that a juror's family member or friendmentions a trial to that juror, and will place a duty on every juror to report their family andfriends to the court for mentioning the trial to a juror.
Finally, we respectfully reject the majority's reliance upon the premise that there was no needto demonstrate that the juror's misconduct influenced the verdict, and that, "[i]f it was likely to doso, it was sufficient to warrant the granting of the motion" (People v Pauley, 281 App Div223, 226 [4th Dept 1953]). Here, inasmuch as we conclude that there is simply no evidence thatthe juror's misconduct caused prejudice or that it "may have affected a substantial right ofthe defendant" (CPL 330.30 [2] [emphasis added]), we further conclude that "it was [not] likelyto do so, [and thus it is in]sufficient to warrant the granting of the motion" (Pauley, 281App Div at 226).
Inasmuch as we vote to affirm the judgment in appeal No. 1, we have reviewed defendant'scontentions in appeal No. 2 and conclude that they do not warrant reversal or modification of theorder in that appeal. Consequently, we would affirm the order in that appeal as well.Present—Whalen, P.J., Smith, Carni, Curran and Winslow, JJ.