Opinion
1541/12
08-16-2016
The People of the State of New York v. Michael Webb, Defendant.
Jason Foy, Esq. for defendant Webb Kristen Bitetto, Esq. for the Office of the Bronx County District Attorney.
Jason Foy, Esq. for defendant Webb Kristen Bitetto, Esq. for the Office of the Bronx County District Attorney. Michael A. Gross, J.
Defendant was charged with Murder in the Second Degree, Robbery in the First Degree and other related offenses. On April 4, 2016, a jury trial commenced before the Court. The People's evidence established that on April 18, 2012, at 1160 E. 229th Street in the Bronx, at about 6:00 p.m., defendant, acting in concert with Craig Whitefield and Alonzo Johnson, participated in a robbery during which Jose Andujar was shot and killed. On April 27, 2016, the jury began deliberations and on May 9, 2016, the jury convicted defendant of Murder in the Second Degree (P.L. §125.25[3]).
Defendant's C.P.L. §330.30 Motion
By papers dated June 22, 2016, defendant has filed a motion to set aside the verdict pursuant to C.P.L. §330.30(2), claiming juror misconduct. Specifically, defendant asserts that Juror Number Seven violated the Court's repeated admonition against speaking about the facts of the case with anyone during the course of the trial.
In his motion, defendant alleges that on May 6, 2016, during deliberations, he spoke by telephone from Rikers Island Correctional Facility to his former girlfriend, Ivalisse Stone. Defendant's relationship with Stone had ended before his arrest in this case. During the conversation, defendant discussed the lengthy jury deliberations in his trial. In response, Stone indicated that her stepfather was serving as a juror in a trial involving lengthy deliberations.
Defendant further alleges that later that day, defendant called Stone again, and that during that conversation, Stone confirmed that her stepfather was, in fact, a deliberating juror on defendant's case. Stone further indicated that her stepfather had told "her and/or her mother" that he did not believe that defendant's guilt had been proved, and that other jurors shared his view of the evidence.
Juror Number Seven according to defendant's motion.
According to defendant, Stone's mother did not approve of her relationship with defendant. Defendant claims the mother's "negative feelings" became "more apparent" after he impregnated her daughter. Stone's pregnancy was later terminated. Stone's mother was "also aware of defendant's criminal activity related to the sale of illegal drugs," as well as his "prior drug criminal cases."
Although he had contact with his attorney shortly before the verdict was rendered on May 9, 2016, defendant did not notify counsel about his conversation with Stone because he "erroneously believed that it was too late to do anything about it." On May 10, 2016, the day after the verdict was rendered, defendant informed counsel about his conversation with Stone.
Upon receipt of this information, counsel filed the instant motion to set aside the verdict pursuant to C.P.L. 330.30(2), claiming juror misconduct. Defendant argues that Stone's stepfather was, in fact, a juror on this case, and as such violated the Court's repeated instruction not to discuss case with anyone other than deliberating jurors. Defendant further claims that it is "likely" that the juror's wife gave him "negative and prejudicial" information about the defendant, which he "may have shared" with his fellow jurors. Accordingly, defendant moves to set aside the jury's verdict or, in the alternative, for an evidentiary hearing on this issue. In support of his motion, the defense has provided an unsworn statement from defendant, in which he stated that Stone advised him that her stepfather "discussed the facts of the case with her and her mother prior to a verdict being reached," and "that he was amongst several other jurors who believed that there was insufficient evidence to establish [defendant's] presence during the crime." Defendant also provided the Court with a greeting card purportedly from Stone, as well as photographs of Stone with her stepfather.
Defendant's Phone Conversations During Deliberations
The People have provided this Court with audio recordings of defendant's telephone conversations from Rikers Island Correctional Facility on May 6, 2016, and May 7, 2016, with an unnamed woman.
The People also provided the Court with written transcripts of the May 6, 2016, phone calls, submitted as People's Exhibits Two and Three. In his reply, defendant objects to the transcripts, claiming they are "not verbatim transcripts and contain multiple errors and inaccurately transcribed statements." While some minor errors appeared in the transcripts, the Court listened to the audio recordings, and relied upon them exclusively in resolving this issue.
On May 6, 2016, using his Book and Case Number, defendant called a woman at 11:30 a.m. During that conversation, defendant told her that he had been on trial for four weeks, and that the jury had been deliberating for the seven days. In response, the woman replied, "I can't even say it. Cause my stepfather's on jury duty and he was telling me a story. I'm like that shit sound mad familiar." Defendant replied, "I'm gonna call you right back."
At 11:45 a.m., using a different inmate's Book and Case Number, defendant called the woman again. During that conversation, the woman confirmed that her stepfather was serving as a deliberating juror on defendant's trial.
At the beginning of the conversation, defendant asked the woman if she had confirmed that "that shit's really my shit," clearly referring to his trial. The woman responded affirmatively, "I have no doubt — no doubt that it's definitely yours." She further stated, "He's been in there. He's been in there for a while now." When defendant indicated that the jury had been deliberating for eight days, the woman replied, "Yeah, he told me. My mother was telling me because he hasn't been to work. He's been over there."
Defendant went on to express his shock, as well as his relief, regarding this coincidence. He stated, "Yo, that's wicked. . . Yo, I mean that's good though at least cause now— ." Interrupting him, the woman replied, "I know. Now I'll talk to her and when I — when, you know, I'll speak to her . . . I'll see whatever ... he got to say." Defendant then laughed repeatedly regarding the news, and exclaimed, "that's crazy. . . I pray to God . . .God is fucking awesome, you heard? God is good."
The woman told defendant her mother tried to "ride" her stepfather about the case. However, despite her efforts, her stepfather told her mother, "I'm not supposed to talk about it, so I'm not gonna talk about it." She told defendant that her mother "will tell [her] more about it" because she had been talking to him about it. Defendant again exclaimed, "Yeah, that's crazy though, man. They — they gonna come out with it good."
Defendant claimed to be innocent of the crimes charged, asserting that the witnesses were incredible and inconsistent. He also spoke about his desire to be with his elderly mother and young son, as well as his frustration with the lengthy jury deliberations. Defendant exclaimed, however, "That is wicked . . . this shit is like yo, I — I got angels on top of my head, yo, you know that." He went on to express his confidence that he will "walk out, beat the case." The woman told defendant that deliberations are taking "so long because everybody's not convinced." She indicated that her stepfather had told her that, and had also indicated that he was not convinced of defendant's guilt. Defendant repeatedly laughed at how "crazy" this coincidence was.
Toward the end of this conversation, the woman expressly stated, "But just don't say nothing. Just keep [it] to yourself." Defendant agreed, stating, "Right. You are absolutely right." She replied, " Cause you don't need nobody running their mouth open . . . that fucks it up for you." Defendant agreed, and told her "I ain't got to tell you what to do. . . you know what time it is."
On May 7, 2016, at 10:30 a.m., defendant called the woman a third time. She immediately indicated that she did not know anything about the case. They did not discuss her stepfather during this conversation.
Legal Analysis
A defendant's motion to set aside a verdict pursuant to C.P.L. §330.30(2) "must be in writing," and "contain sworn allegations, whether by the defendant or by another person or persons, of the occurrence or existence of all facts essential to support the motion" (see C.P.L. §330.40[2][a]). Without such sworn allegations, the Court is authorized to deny the motion summarily (see C.P.L. §330.40[2][e][ii]; see also Preiser, Practice Commentaries [McKinney's Cons. Laws of NY, Book 11A, C.P.L. § 330.40 at 165] ["Where written motion is required, failure to support the ground alleged with sworn allegations of all essential facts will result in summary denial"]).
Here, defendant's motion relies solely on his own unsworn statement, which consists solely of double and triple hearsay statements from Stone, her mother and Stone's stepfather. In addition to failing to provide his own affidavit, defendant has failed to provide this Court with sworn statements from either Stone or her mother to substantiate his claim of juror misconduct. His motion is unsupported by any corroboration to establish that Juror Number Seven was actually related to Stone and her mother, or that the juror had spoken to them about the facts of defendant's case in violation of the Court's order. Nor has defendant provided an explanation for his failure to provide any sworn factual allegations in support of his claim. Indeed, based on their conversations, defendant appears to be on good terms with Stone. While defendant argues in his reply that it would have been "inappropriate for defense counsel to location and question jurors about the content of their jury deliberations" to substantiate his claim, that does not explain why he failed to provide affidavits from Stone or her mother. Absent affidavits from such potential witnesses, defendant's allegations consist solely of unsubstantiated, speculative hearsay allegations (see People v. Pan, 245 AD2d 149 [1st Dept. 1997] [C.P.L. §330 motion properly denied where no sworn allegations of fact by any individual having actual knowledge of alleged misconduct during jury deliberations]; People v. Salaam, 187 AD2d 363 [1st Dept. 1992] [motion to set aside verdict for juror misconduct denied where claim based solely on hearsay]; People v. Bellamy, 158 AD2d 525 [2d Dept. 1990] [C.P.L. §330 motion properly denied where supporting affidavit contained only hearsay]). Accordingly, absent such sworn allegations of fact to substantiate his claim of juror misconduct, defendant's motion is denied without a hearing pursuant to C.P.L. § 330.40(2)(e)(ii).
While defendant erroneously refers to his statement as an affidavit, it was not sworn to before a notary public or made under oath.
The Court will assume that the stepfather was Juror Number Seven although there is no basis for drawing such a conclusion from defendant's motion papers.
Although defendant has included photographs which are purportedly of Stone and her stepfather, he has failed to include any sworn allegations to establish the identity of the people in the photographs.
Contrary to defendant's claim in both his motion and reply papers, he is not entitled to a hearing absent sworn factual allegations in support of his claim.
In any event, defendant's underlying claim of juror misconduct is without merit. In order to prevail on a motion to set aside a verdict pursuant to C.P.L. §330.30(2), a defendant must establish that "during the trial there occurred, out of the presence of the court, improper conduct by a juror, or improper conduct by another person in relation to a juror, which may have affected a substantial right of the defendant and which was not known to the defendant prior to the rendition of the verdict" (see also People v. D'Alessandro, 184 AD2d 114 [1st Dept. 1992]). Indeed, "not every misstep by a juror rises to the inherently prejudicial level" requiring reversal(People v. Clark, 81 NY2d 913, 914 [1993]). The court must examine each case "on its unique facts to determine the nature of the misconduct and the likelihood that prejudice was engendered" (id. at 914).
Here, defendant claims that Juror Number Seven engaged in improper conduct by discussing the case with his family in violation of the Court's instructions. However, it is uncontroverted that defendant was aware of the alleged juror misconduct during deliberations and failed to report it until after the verdict.Defendant's motion papers, his Rikers phone calls and his attorney's representation in court clearly establish defendant's knowledge of the purported misconduct by Juror Number Seven on May 6, 2016. The record further reflects that defendant had the opportunity to inform either his attorney or the Court of the information on May 9, 2016 — before the verdict was rendered — and neglected to do so. Despite such knowledge, defendant failed to inform defense counsel about the alleged misconduct until May 10, 2016 — the day after the verdict was recorded. Therefore, his failure to challenge the juror's misconduct constituted a waiver of this claim (see People v. Kelly, 11 AD3d 133 [1st Dept. 2004]).
C.P.L. § 330.30(2) expressly states that a defendant may only move to set aside a verdict of guilt for improper juror conduct were such conduct was "not known to defendant prior to the rendition of the verdict" (see also Preiser, Practice Commentaries, at 70; People v. Scanlon, 52 AD3d 1035 [2008]). Therefore, in order "[t]o object successfully to a juror's misconduct after a verdict, a defendant is required to demonstrate that the objectionable conduct was not known to him before the verdict" (People v. Owens,191 AD2d 715, 716 [2d Dept. 1993] [defendant's §330.30 claim that juror failed to disclose acquaintanceship with defendant denied where defendant recalled personally knowing juror but failed to challenge her placement on jury]; see also People v. Barrett, 231 AD2d 806 [3d Dept. 1996] [C.P.L. §330.30 motion properly denied where misconduct known to defendant before verdict]; People v. Hammond, 132 AD2d 849 [3d Dept. 1987] [postverdict objection to juror only considered where defendant shows challenge unknown to him beforehand]; People v. Albright, 104 AD2d 508 [3d Dept. 1984]). Here, defendant has conceded that he had knowledge of the alleged misconduct by Juror Number Seven, and had an opportunity to act upon such information before the verdict. However, despite having knowledge and opportunity, defendant failed to alert either counsel or the Court about the misconduct prior to the rendition of the verdict because he clearly believed he would benefit from the alleged misconduct. Accordingly, defendant's motion to set aside the verdict pursuant to C.P.L. §330.30(2) must be denied (see C.P.L. §330.30[2]; People v. Walsh, 222 AD2d 735 [3d Dept. 1995] [C.P.L. §330.30 motion properly denied where defendant had opportunity to inform counsel or court about juror misconduct but failed to do so before verdict]).
In his reply, defendant argues that unlike the cases relied upon by the People, his own attorney was unaware of the juror misconduct until after the verdict was announced. However, upon the plain reading of the statute, this claim is rejected. C.P.L. §330.30 expressly states that the misconduct must not be "known to the defendant" prior to the rendition of the verdict. Moreover, it is defendant's obligation to alert counsel or the court upon learning of such misconduct (see also Walsh, 222 AD3d at 736-737). --------
Moreover, defendant has failed to establish that Juror Number Seven had actually engaged in improper conduct, or that he suffered any prejudice to a substantial right as a result of any misconduct. Defendant has offered no evidence in support of his claim that Juror Number Seven violated the Court's admonition against speaking about the case during deliberations. As discussed supra, defendant's claim of misconduct consists entirely of hearsay, and is unsupported by any sworn factual allegations. Additionally, defendant's claim that the wife of Juror Number Seven may have imparted negative information to him, which he, in turn, relayed to the other jurors, is based completely on speculation. Indeed, neither Stone nor defendant expressed any concern about this issue during their conversation.
Furthermore, defendant's claim of juror misconduct is actually belied by defendant's phone conversation with Stone. During their recorded conversation, Stone expressly stated that her stepfather refused to discuss the case with her mother. Stone told defendant that when her mother tried to discuss the case with him, her stepfather firmly replied, "I'm not supposed to talk about it, so I'm not gonna talk about it." Thus, Juror Number Seven had apparently adhered to the Court's admonition against speaking about the case with anyone other than fellow jurors. Indeed, the following day, Stone told defendant she had no information for him, further evidence of Juror Number Seven's compliance. The mere fact that Juror Number Seven told his wife that he was deliberating on a jury does not constitute a violation of the Court's instructions (see People v. Wilson, 93 AD3d 483 [1st Dept. 2012]).
In any event, assuming arguendo Juror Number Seven had violated the Court's admonition, defendant has failed to offer any evidence to establish it affected a substantial right or that he was prejudiced in any way by such misconduct. On the contrary, Juror Number Seven's familial relationship to defendant's former girlfriend could be viewed as advantageous to defendant since he was on amicable terms with her (see People v. Williams, 50 AD3d 472 [1st Dept. 2008] [defendant failed to establish prejudice based on foreperson's discovery that she was friends with defendant's niece since incident beneficial to defendant]; see also Clark, 81 NY2d 914-15). Indeed, defendant clearly believed this connection would inure to his benefit, which explains his failure to notify the Court and seek a mistrial prior to verdict. Defendant's telephone conversation established that he was both relieved and elated to discover Stone's familial connection to Juror Number Seven. Defendant characterized the coincidence as a positive one, indicating that jury's outcome would be favorable to him. In fact, he repeatedly thanked God, and stated he had "angels" watching over him. He also used the opportunity to appeal to Stone's sympathies, and repeatedly proclaimed his innocence. When Stone warned him not to tell anyone about their conversation, defendant readily agreed to remain silent. Defendant clearly decided to remain silent with this information because he strongly believed it would result in a favorable verdict. Once such misconduct became known to defendant, he "is not permitted to remain silent about it while rolling the dice for an acquittal, and then, only after a conviction, move to set aside the guilty verdict" (People v. Auguste, 25 Misc 3d 1215[A] [Sup. Ct. Kings Co. 2014]). Therefore, defendant has failed to establish that he was prejudiced in any way by the actions of Juror Number Seven.
In sum, defendant's motion to set aside the verdict is unsupported by any sworn factual allegations in support of his claim of juror misconduct. Moreover, defendant has failed to establish that he was prejudiced by any alleged misconduct, and that such conduct was unknown to him before the rendition of the verdict. Accordingly, because defendant has failed to meet the statutory requirements set forth in C.P.L. §330.30(2), his motion to set aside the verdict is denied in its entirety.
This is the order and decision of the Court. DATED: August 16, 2016 Bronx, New York __________________________ MICHAEL A. GROSS, J.S.C.