Opinion
169 KA 17-00339
04-28-2023
The PEOPLE of the State of New York, Respondent, v. Derrick WOODARD, Also Known as "Wood," Defendant-Appellant.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT-APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (JODI A. DANZIG OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT-APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (JODI A. DANZIG OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In this prosecution arising from an investigation into a multi-level drug sales operation, defendant appeals from a judgment convicting him, following a joint jury trial with three codefendants, of conspiracy in the second degree ( Penal Law § 105.15 ), criminal sale of a controlled substance in the third degree (§ 220.39 [1]), and criminal possession of a controlled substance in the third degree (§ 220.16 [1]). We previously held the case, reserved decision, and remitted the matter to Supreme Court for a hearing on defendant's motion to set aside the verdict pursuant to CPL 330.30 (2) on the ground of misconduct during jury deliberations, which had been summarily denied by the court, and we also rejected defendant's remaining contentions ( People v. Woodard , 199 A.D.3d 1377, 156 N.Y.S.3d 631 [4th Dept. 2021] ). Defendant's motion was supported by sworn allegations, including the affidavits of two jurors, indicating that certain other jurors may have had undisclosed preexisting prejudices against people of defendant's race that may have affected defendant's substantial right to an impartial jury and fair trial ( id. at 1380, 156 N.Y.S.3d 631 ). Upon remittal, the court conducted a hearing during which all 12 jurors testified, and thereafter denied the motion. As relevant here, a court may, upon a motion of the defendant, set aside the verdict on the ground "[t]hat during the trial there occurred, out of the presence of the court, improper conduct by 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" ( CPL 330.30 [2] ). "Generally, a jury verdict should not be impeached, absent special circumstances, by affidavit or testimony of jurors after their verdict is publicly returned, [which is] a rule designed to protect jurors from being harassed after verdict and to ensure the secure foundation of the verdict" ( Woodard , 199 A.D.3d at 1379, 156 N.Y.S.3d 631 [internal quotation marks omitted]; see People v. Estella , 68 A.D.3d 1155, 1157, 889 N.Y.S.2d 759 [3d Dept. 2009] ; People v. Rukaj , 123 A.D.2d 277, 280, 506 N.Y.S.2d 677 [1st Dept. 1986] ). Nonetheless, setting aside the verdict "is warranted where a juror had an undisclosed preexisting prejudice that would have resulted in his or her disqualification if it had been revealed during voir dire, such as an undisclosed, pretrial opinion of guilt against the defendant" ( People v. Rivera , 304 A.D.2d 841, 842, 759 N.Y.S.2d 136 [2d Dept. 2003] ; see People v. Leonti , 262 N.Y. 256, 258, 186 N.E. 693 [1933] ; Estella , 68 A.D.3d at 1157, 889 N.Y.S.2d 759 ; Rukaj , 123 A.D.2d at 280-281, 506 N.Y.S.2d 677 ). Upon a hearing pursuant to CPL 330.30, "the defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion" ( CPL 330.40 [2] [g] ). "The trial court is invested with discretion and posttrial fact-finding powers to ascertain and determine whether the activity ... constituted misconduct and whether the verdict should be set aside and a new trial ordered" ( People v. Maragh , 94 N.Y.2d 569, 574, 708 N.Y.S.2d 44, 729 N.E.2d 701 [2000] ).
We reject defendant's contention that the court abused its discretion in denying his motion to set aside the verdict. Here, upon our review of the record, we conclude that " ‘[t]here is no basis to disturb the court's fact-findings and credibility determinations, which are entitled to great deference on appeal’ " ( People v. Dizak , 93 A.D.3d 1182, 1185, 940 N.Y.S.2d 408 [4th Dept. 2012], lv denied 19 N.Y.3d 972, 950 N.Y.S.2d 355, 973 N.E.2d 765 [2012], reconsideration denied 20 N.Y.3d 932, 957 N.Y.S.2d 691, 981 N.E.2d 288 [2012] ; see People v. Blunt , 187 A.D.3d 1646, 1647, 133 N.Y.S.3d 157 [4th Dept. 2020], lv denied 36 N.Y.3d 970, 138 N.Y.S.3d 485, 162 N.E.3d 714 [2020] ). The jurors, including the two who had initially complained shortly after the verdict, were unanimous in their testimony at the hearing that, contrary to the allegation in the affidavit of one of the initially complaining jurors, none of them had heard a racial slur uttered during deliberations, and most of the jurors did not recall any discussion of race whatsoever. Of the few jurors who recalled conversations about race, one disclaimed that the comments had any impact on the verdict, which in fact involved acquittals on various charges against several defendants, and the other jurors provided, at most, ambivalent opinions—based on a personal feeling or sentiment about the deliberations or an intuition about the "energy" in the jury room—that considerations of race may have factored into some jurors’ decision-making (cf. Leonti , 262 N.Y. at 258, 186 N.E. 693 ; Estella , 68 A.D.3d at 1156-1157, 889 N.Y.S.2d 759 ; Rivera , 304 A.D.2d at 842, 759 N.Y.S.2d 136 ; Rukaj , 123 A.D.2d at 280-281, 506 N.Y.S.2d 677 ). Such speculation and surmise is insufficient to meet defendant's burden of establishing by a preponderance of the evidence that juror misconduct in the form of racial bias may have affected his substantial right to an impartial jury and fair trial (see People v. Quinn , 210 A.D.3d 1284, 1291, 178 N.Y.S.3d 623 [3d Dept. 2022], lv denied 39 N.Y.3d 1079, 184 N.Y.S.3d 295, 204 N.E.3d 1076 [2023] ; People v. Hernandez , 107 A.D.3d 504, 504, 967 N.Y.S.2d 64 [1st Dept. 2013], lv denied 22 N.Y.3d 1199, 986 N.Y.S.2d 420, 9 N.E.3d 915 [2014] ). Finally, we reject defendant's contention that he was prejudiced by the passage of years between the deliberations and the hearing because the record establishes that the jurors, despite some faded memories, adequately recalled the most pertinent details of the deliberations and several jurors indicated that they would have remembered if a racial slur had been uttered in the jury room (see generally People v. Smith , 76 Misc.3d 597, 613-616, 172 N.Y.S.3d 593 [Sup. Ct., Bronx County 2022] ).