| People v Neulander |
| 2019 NYSlipOp 07521 [34 NY3d 110] |
| October 22, 2019 |
| Wilson, J. |
| Court of Appeals |
| As corrected through Wednesday, December 11, 2019 |
[*1]
| The People of the State of New York, Appellant, v M. RobertNeulander, Respondent. |
Argued September 5, 2019; decided October 22, 2019
People v Neulander, 162 AD3d1763, affirmed.
The issue before us is whether the undisputed juror misconduct in this case warrants areversal of the judgment convicting Dr. Neulander of murder and evidence tampering. TheAppellate Division concluded that the trial court abused its discretion by denying his CPL 330.30motion to set aside the verdict against him based on that juror misconduct. We agree that, on thisrecord, he is entitled to a new trial. "Nothing is more basic to the criminal process than the rightof an accused to a trial by an impartial jury" (People v Branch, 46 NY2d 645, 652[1979]). We therefore affirm.
In April 2015, a jury convicted Dr. Neulander of murdering his wife and tampering withphysical evidence. Throughout the trial, one of the jurors, juror 12, sent and received hundreds oftext messages about the case. Certain text messages sent and received by juror 12 weretroublesome and inconsistent with the trial court's repeated instructions not to discuss the casewith any person and to report any attempts by anyone to discuss the case with a juror. Juror 12also accessed local media{**34 NY3d at 113} websites that werecovering the trial extensively. In order to hide her [*2]misconduct, juror 12 lied under oath to the court, deceived thePeople and the court by providing a false affidavit and tendering doctored text messageexchanges in support of that affidavit, selectively deleted other text messages she deemed"problematic," and deleted her now-irretrievable Internet browsing history. The cumulative effectof juror 12's extreme deception and dishonesty compels us to conclude that her "improperconduct . . . may have affected a substantial right of the defendant" (CPL 330.30[2]).
Defendant moved, pursuant to CPL 330.30, to set aside the verdict based on jurormisconduct. Upon conclusion of a fact-finding hearing, the trial court determined that juror 12consciously engaged in misconduct and prevarication, but nonetheless believed her misconductdid not render the trial unfair. The Appellate Division, with two Justices dissenting, reversed thejudgment and granted a new trial, with the majority observing that "every defendant has a right tobe tried by jurors who follow the court's instructions, do not lie in sworn affidavits about theirmisconduct during the trial, and do not make substantial efforts to conceal and erase theirmisconduct when the court conducts an inquiry with respect thereto" (People v Neulander, 162 AD3d1763, 1768 [4th Dept 2018]). We agree that the extensiveness and egregiousness of thedisregard, deception, and dissembling occurring here leave no alternative but to reverse thejudgment of conviction and remit for a new trial and compel us to affirm publicly the importanceof juror honesty.
Under CPL 330.30 (2), a verdict should be set aside if "improper conduct by a juror. . . may have affected a substantial right of the defendant and . . . wasnot known to the defendant prior to the rendition of the verdict." Of course, "not every misstep bya juror rises to the inherently prejudicial level at which reversal is required automatically"(People v Brown, 48 NY2d 388, 394 [1979]); "[e]ach case must be examined on itsunique facts" (People v Clark, 81 NY2d 913, 914 [1993]). Under the extraordinarycircumstances of this case, we conclude that juror 12's behavior "may have affected a substantialright of the defendant." This is not a case of stray texts or inadvertent misstatements. The recordplainly supports the findings of both lower courts that juror 12's conduct disregarded the court'splentiful instructions as to outside communications and when such conduct was brought to light,the{**34 NY3d at 114} juror was deliberately and repetitivelyuntruthful. During the third day of jury deliberations, when the court first examined juror 12 as towhether she had violated the court's instructions concerning outside communications, sheinsisted that she had not, which later proved to be false. When, after the jury had rendered itsverdict, an alternate juror advised the court, by affidavit, that juror 12 had engaged in improperconduct, juror 12 secretly and selectively deleted numerous text messages which she believed tobe "problematic," and presented to the People the remaining portions of the text messageexchanges as if they were complete recitations of the communications. Juror 12 thereby inducedthe People to submit to the court her exculpatory affidavit, attaching the fabricated versions ofher conversations with no indication that she had doctored them.
When, at the CPL 330.30 hearing, she was examined about her selective deletions, whichwere uncovered through a forensic examination of her cell phone, juror 12 gave several answersevidencing a continued lack of candor. Although she deleted her entire Internet browsing historyand could not explain why, when confronted with evidence that she had accessed a websiteproviding daily trial coverage, she testified that she read nothing about the trial and probablyaccessed the site to read an article on cheerleading. The People and defense counsel stipulated,however, that no such article appeared on that site during the relevant time. She several timesaccessed a second news website providing trial coverage, as to which she offered noexplanation.
In this case, a sworn juror, when examined by the court about the breadth of her outsidecommunications, was repeatedly and deliberately untruthful about the scope of that misconductand affirmatively sought to conceal evidence of her misconduct. That extraordinary and dishonestbehavior by a juror purposefully selected to be a fair and objective arbiter of the facts in the casecauses irredeemable injury to the judicial system and the public's confidence in it. "Jurors, ofcourse, do not live in capsules" (Brown, 48 NY2d at 393) and cannot be isolated duringtheir service from the outside world, including their friends and families. However, they must beexpected, at the very minimum, to obey the admonishments of the trial court, report attempts byothers trying to influence their oath to be objective, and to be forthcoming during court inquiriesinto their conduct as a juror. Juror 12's blatant disregard for the court's instructions coupled withher purposeful dishonesty and deception{**34 NY3d at 115}when her actions and good faith as a juror came into question vitiate the premise that juror 12was fair and impartial and lead us to conclude that a new trial is required. On this record, thecumulative effect of juror 12's misconduct, deceit, and destruction of evidence—conductwhich obfuscated the full extent of her misconduct—compels us to agree with theAppellate Division that juror 12's "improper conduct . . . may have affected asubstantial right of the defendant" (CPL 330.30 [2]), and, therefore, the trial court abused itsdiscretion in declining to set aside the verdict.
The People contend that even if juror 12 engaged in misconduct, "that misconduct issignificantly outweighed by the substantial proof of guilt presented at trial." However, "[t]heright to a fair trial is self-standing and proof of guilt, however overwhelming, can never bepermitted to negate this right" (People v Crimmins, 36 NY2d 230, 238 [1975]). The"public at large is entitled to assurance that there shall be full observance and enforcement of thecardinal right of a defendant to a fair trial" (id.). Affirming a conviction where a jurorengaged in dishonesty of this magnitude would not discharge our "overriding responsibility" toensure the public's confidence in the fairness of trials (id.).
Accordingly, the order of the Appellate Division should be affirmed.
Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia and Feinman concur.
Order affirmed.