People v Forde

[*1] People v Forde 2005 NY Slip Op 50944(U) Decided on April 26, 2005 Supreme Court, New York County Atlas, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 26, 2005
Supreme Court, New York County

THE PEOPLE OF THE STATE OF NEW YORK

against

MICHAEL FORDE and MARTIN DEVEREAUX, Defendants



5544-00

Jeffrey M. Atlas, J.

The defendants, convicted after trial of Bribe Receiving by a Labor Union Official, have filed two motions to set aside the verdict in this case. First, the defendants claim that the evidence presented at trial is insufficient as a matter of law to sustain the verdict (C.P.L. § 330.30 (1)), and second, that there was improper conduct by a number of jurors which effected a substantial right of the defendants (C.P.L. § 330.30 (2)). I will address the sufficiency of the evidence first.

During the period in question Michael Forde was President of Local 608 of the Carpenters Union and Martin Devereaux was a business agent of the same union.

The evidence showed that in 1998, the Park Central Hotel was undergoing renovations being conducted in tandem with renovations of an adjacent building. In fact, the walls of the buildings were opened to join the two. At an early stage in the construction the carpentry work fell under the jurisdiction of Local 135 of the Carpenters Union. However, just weeks before the events in this case, after a dispute with Local 135 over jurisdiction, Local 608 was granted jurisdiction of the project at the Park Central Hotel. Local 135 maintained its workers at the adjacent building and had its own shop steward at that location. There was evidence that during the height of the renovation, when the walls that had separated the buildings had been removed, it was not uncommon for workers at both sites to simply walk from one building to the other to borrow material from the adjacent site. The evidence also showed that there was some continuing hostility between the two union locals.

The Park Central Hotel renovation was being done by S&S contracting, a construction firm owned by Sean Richard, who was then married to the daughter of the head of the so-called DeCavalcante Crime Family of New Jersey. Richard's right hand man and liaison [*2]to the unions was Anthony Rucereto, a former and long time member of a New Jersey union engaged in the construction trade. Richard, who apparently had other ties to mob figures, in time became an informant for the State in exchange for favorable treatment by the State with respect to many other crimes committed by him. In fact, Richard was indicted and pleaded guilty to certain crimes but was promised a probation sentence in exchange for his continued cooperation. Amongst the people Richard informed on was his side-kick, Anthony Rucereto, who was also indicted . During the pendency of his indictment Rucereto also became a witness for the State in exchange for a favorable disposition of his case. The conviction of these two defendants, Forde and Devereaux, is based almost entirely upon the testimony of Richard and Rucereto, testimony which in its most important part is utterly inconsistent.

According to the trial evidence, S&S Contracting began some work at the Park Central Hotel in early spring of 1998. Soon after, Forde, Devereaux and another union representative came to the job site. There they met Anthony Rucereto and Sean Richard. Richard testified that apart from introductions and "small talk," Forde, learning that S&S was a New Jersey based contractor, advised Rucereto that if S&S wanted to continue the job with their own New Jersey carpenters they should seek an International Agreement permitting those workers to work within the jurisdiction of Local 608. Thereafter, S&S did obtain such an agreement. Devereaux, who was to be Local 608's Business Agent at the site, gave Rucereto his business card for future reference. [FN1]

As time passed and S&S became more deeply involved in the work at the hotel, it became of some concern to Richard that he be able to make a greater profit by continuing the job with non-union labor. To that end, he directed Rucereto to set up a meeting with the defendants and to offer Michael Forde $50,000 to assure that the union would not interfere with the use by S&S of non-union labor. Richard testified that it was Rucerto's job to take care of such things. Pursuant to that direction, Rucereto called Devereaux and requested a luncheon meeting, giving Devereaux the location, day and time and stating that "he would meet them and we would discuss the job." (Emphasis added).

Thereafter, Rucereto met at a restaurant with Devereaux, who brought along Forde and another union official. The conversation included discussions about unions, careers and about the importance of having good men on the job. At some point in the meeting Rucereto asked Forde to step outside. Away from the others, Rucereto offered Forde $50,000 to assure that the union would give S&S "some good men, shop steward" and added "don't be so hard with the rule book." Rucereto testified that Forde did not respond to the offer but rather "He was stone. He didn't say a word. He was stone cold." The two men then returned to the restaurant and in the presence of the others Forde told Rucereto that there would be "no non-union men" on the Park Central Hotel job.

Rucereto reported back to Richard that he offered the money to Forde but he received no answer from him. Once again, Richard turned to Rucereto to bring about a meeting with Forde and Devereaux. According to Richard, it was his intention at such a meeting "to make the first payment to Mr. Forde," although there was no evidence as to why he would have believed Forde would be amenable to such a payment. According to Richard, Rucereto contacted Devereaux and arranged for the meeting. At first Richard said that the meeting took place in early April, certainly no later than mid-April, 1998. According to Richard, before the meeting he gave a check to Rucereto for $15,000 which Rucereto cashed. Richard testified that he gave Rucereto only $10,000 of the proceeds which Rucereto carried to the meeting in an envelope to give to Forde. [FN2] When asked to note the date of the check, April 23, 1998, Richard then claimed that the meeting took place some time in late April, which he later defined as the last week of April or early May, at the latest. Thereafter, Richard provided several conflicting answers as to when the meeting took place, bouncing back and forth between early April and late April. Richard stated that he, Rucereto, Forde and Devereaux met at the Hooters bar across the street from the Park Central Hotel, sat at a table near the window and ordered beers. He testified there was no conversation at all about the money. In fact, Richard testified that he never gave the money to either of the defendants and never saw the money given to either of them. Richard was not asked about, nor did he offer any further details as to any conversation between the men at the table other than to say that pleasantries were exchanged. Richard ended his testimony by stating that when they left the restaurant Rucereto no longer had the envelope with the money on his person. At no time did Richard explain how he knew this.

As for Rucereto, his version of this critical meeting was quite different. Rucereto agreed that he did cash a check for Richard and returned the proceeds to Richard. At Richard's direction, he then set up a meeting with the defendants to be held at Hooters. It was Rucereto's recollection that Forde and Devereaux were already seated at a table "in the front window" when he and Richard arrived. He recalled that the only thing that the four discussed was the job at the Park Central. He specifically recalled that Forde expressed concern to Richard about non-union men being involved with the job. Rucereto testified that at some point, at the direction of Richard, Rucereto left the table and was gone for about ten to fifteen minutes. When he returned, the four men said goodbye and left. Rucereto testified that he never came to the meeting with the money in question, that he gave the proceeds of the cashed check to Richard, that he did not know if Richard even brought the money to the meeting, and that at no time did he ever see money given to either Forde or Devereaux.

Soon after that meeting, Local 608 assigned a shop steward to the job at the Park [*3]Central Hotel. The shop steward was apparently selected by Martin Devereaux, who was the business agent supervising the job for the local. The shop steward was Vincent McIntyre, a young carpenter with no previous experience as a shop steward. However, the evidence established that McIntyre was selected in accordance with union rules, his being the next name in line for such a selection, and that no special effort was made by Martin Devereaux to pick McIntyre or anyone in particular as shop steward. McIntyre knew that one of his duties was to fill out a shop steward report each week for the union which listed all the workers on the job, whether they were union or non-union workers. The failure to list all workers at the job would serve to conceal the presence of non-union workers at the site, a considerable monetary advantage to the contractor and disadvantage to the union. McIntyre attempted in good faith to fulfill this responsibility but he was rudely rebuffed by men working above the ground floor of the building who refused to give him their names. There is no evidence as to whether these men were S&S employees or the local 135 workers moving between the two buildings. McIntyre advised Devereaux that he was unable to complete the shop steward reports because of the lack of cooperation of the workers on the site. Devereaux advised McIntyre to continue to attempt to fill out the reports but to hold on to the incomplete reports while he attempted to take care of the matter.

In early June, the job site at the Park Central Hotel was raided by members of an oversight committee of the District Council of Carpenters of which Local 608 was a member. The raid was led by Patrick O'Neill. The union investigators claimed that they had found many non-union workers at the job whose presence had not been reported by McIntyre or Devereaux. Actually, when O'Neill and his men went to the upper floors of the thirty story building to count the number of workers, they found the task overwhelming and instead asked all the workers to come to the lobby to be accounted for. In addition, O'Neill found Vincent McIntyre who delivered at least five weeks of partially completed shop steward reports to him which McIntyre had retained, presumably pursuant to Devereaux's earlier advice. O'Neill counted some twenty-seven workers. Six of the men were listed on McIntyre's report for that day, ten or eleven men had union cards from local 15 in New Jersey and ten or eleven had no union cards at all. O'Neill first called Martin Devereaux and then Michael Forde to the site. Devereaux arrived with Forde. O'Neill testified that when Devereaux was asked what was going on at the job, he said that he didn't want to be involved in the job. According to O'Neill, when confronted with the claim that Devereaux had been to the job every week, Devereaux responded that he didn't want anything to do with it and that the contractor was a gangster type with connections to Washington, a reference to the International Union located in Washington, D.C.. When Devereaux was asked, he said that Forde knew nothing about the job. Forde was not questioned at the time. Thereafter, Martin Devereaux was brought to the District Council office to be questioned about the presence of non-union workers at the site. During Devereaux's interview by union investigators, he first wrote out a brief statement which referred to the International Agreement with S&S, to the fact that he sent a steward and four men from the "hall," that he dealt with some details pertaining to a paycheck, and that he visited the site four or five times. Devereaux also told O'Neill that he had spoken to Richard a number of times to resolve payroll issues. Devereaux was questioned further and his statements were recorded. He said that he had met Richard by chance [*4]when he went to the Park Central Hotel in connection with the work on the adjoining premises. At the time, Richard told Devereaux of Richard's many connections to "Washington" and to the "mob." Devereaux told his questioners that he had not sent a steward to the job site until mid-May despite the fact that S&S had begun work in mid-April after obtaining their International Agreement. However, Devereaux did note that he had left New York for a training program in Virginia and was gone from April 13 through the end of April. When he returned he did not turn his attention to the Park Central Hotel immediately because he claimed to be busy with other things. In May, he appointed McIntyre the steward in accordance with regular union procedure. During that interview Devereaux was pressed by Patrick O'Neill and others as to why he had permitted non-union workers on the job site for several weeks after mid-May and why he had told McIntyre to hold back on the shop steward reports. Devereaux repeatedly noted that McIntyre was afraid to go to the upper floors of the job site because he had found the men there very intimidating. According to Devereaux, he simply told the steward not to send in incomplete reports and did not encourage him to hide the reports. Devereaux said that he personally had gone to the site four to five times and had not found many workers for S&S, although he had seen a number of workers for the contractor working the adjoining building. He did not doubt that there were other S&S workers at the job but, because they were either members of the so-called Harlem Coalition or what he described as "wise-guys," he found those men unapproachable. He claimed that he then spoke to Sean Richard in an effort to get Richard to supply the names and social security numbers of all the men but Richard remained unresponsive. Interestingly, it was then that O'Neill announced "I think we got Sean's attention. Well, I can assure you all those guys will be on the new steward reports with the new steward there." Finally, Devereaux told the interviewers that he did not share these problems with Michael Forde. Immediately after the interview Devereaux was fired and escorted from the union premises. Later that day, O'Neill spoke to Forde on the phone about the Park Central job. The conversation was recorded by O'Neill. Asked what Devereaux had told him about the Park Central job, Forde said that he had not been told much but was aware that a steward was assigned to the job and that the contractor had an International Agreement. Forde told O'Neill that Devereaux did not tell him about there being non-union men on the job or that there were any problems on the job.

After this brief investigation a new business agent and a new shop steward were assigned to the job site. According to Rucereto, a short time thereafter, Rucereto offered Devereaux a job which he declined. However, Forde took the matter of the raid and the Devereaux discharge to the International Union by writing a letter in strong defense of Martin Devereaux which explained the difficulties presented at this job by the confusion resulting from two different contractors and two competing locals working side by side at this thirty story building. Devereaux was eventually reinstated to his position and O'Neill, who led the raid leading to the discharge of Devereaux, was relieved of his duties.

During the charge conference in this trial, the People agreed that their case rested on the jury's acceptance of circumstantial evidence which they were to weigh in accordance with [*5]my instructions regarding the meticulous care with which that evidence must be evaluated. In addition, the People agreed that the testimony of Richard and Rucereto was accomplice testimony which had to be independently corroborated, and they consented to my charging the jury regarding that.

The defendants claim that the evidence was not sufficient to sustain the People's burden in either respect, contending that there simply was no evidence that a bribe was ever paid to either defendant and that the inconsistencies in the testimony of Richard and Rucereto on this subject are irreconcilable. The prosecutor contends that the circumstantial evidence, when viewed in a light favorable to the people, is sufficient to support the guilty verdict. As for the glaring inconsistencies in the testimony of Richard and Rucereto, the prosecutor argues that the jury was free to have accepted the testimony of Richard and rejected inconsistent aspects of Rucereto's testimony.

The law requires that in measuring the validity of the defendants' claims I must view the evidence in a light most favorable to the People. I cannot set aside the verdict simply because I believe that there are reasonable inferences of innocence in direct competition with inferences of guilt that might be drawn from the evidence. Nor can I set the verdict aside because of the rather peculiar and conflicting testimony regarding the Hooters meeting given by the two informers, Richard and Rucereto. (People v. Hines, 97 NY2d 56, 62 [2001]; People v. Colon, 65 NY2d 888, 890 [1985]).

This case rests upon evidence of certain circumstances which allow for inferences that support a guilty verdict. The evidence established that Richard and Rucereto went to a meeting intending to give money to Forde to influence him and Devereaux to permit non-union carpenters at the Park Central Hotel construction site. While it is true that neither witness said that the money was actually paid, the jury could have inferred that it was paid because it was Richard and Rucereto's intention to do so, and because of Devereaux's subsequent conduct with respect to McIntyre and the shop steward reports. It may reasonably be argued that Devereaux's complicity in not properly filling out and filing the shop steward reports which might have revealed the presence of non-union employees was brought about by some special circumstance, to wit, a bribe paid to Forde and Devereaux. The jury might also have concluded that when Devereaux was ultimately asked to explain his inaction, his answer was wholly inadequate. The evidence regarding Devereaux's instructions to McIntyre and Devereaux's seeming inaction in determining who the workers were, coupled with evidence that there were non-union workers on the job, not only permitted the inference that a bribe was paid at the Hooter's meeting, but also corroborated the testimony of Richard and Rucereto. For support as to Forde's complicity in this scheme, the People look to the letter written by Forde seeking Devereaux's reinstatement as corroboration of his involvement. I, however, simply cannot see how that act in support of a friend and co-worker could constitute evidence of his participation in a bribery scheme. However, if one concludes that a bribe was paid, the inference would be permissible that it was paid to Forde. Not only did Rucereto and Richard intend to bribe Forde in particular but, if he is to be believed, Rucereto went out of his way to offer Forde a bribe out of the presence of [*6]Devereaux. In fact, there exists no direct evidence in this trial that anyone ever discussed a bribe with Devereaux. It might reasonably be concluded that Devereaux knew nothing of a bribe offer when he attended the Hooters meeting and that it would be much more likely that the money would be offered to the one person the bribe giver was certain did know about the matter. It is certainly reasonable to infer that had Forde been paid he would have passed that information and some of the money to Devereaux, whose cooperation was needed to accomplish Richard's goal.

However, in the context of this entire case some evidence that is inconsistent with guilt must be noted. After all, this was not a strong circumstantial case. Indeed, at best the evidence was only marginally sufficient to meet the standards that must be followed in a case based on circumstantial evidence. To begin with, the jury was required to determine the credibility of Richard and Rucereto, both of whom were unsavory characters seeking to please the prosecutors and justify the non-jail sentences in their own cases. It is to be recalled that each offered a totally different version of the most critical event in the case and neither admitted to having paid a bribe. The evidence showed that both made significant prior inconsistent statements about the event when debriefed by law enforcement officials. There is evidence to suggest that if the bribe meeting was to have occurred in late April, that Devereaux was not even in New York at the time. Moreover, the trial record reflects Devereaux and Forde's claim that they were well aware that the people they were dealing with were affiliated with gangsters. It might well be concluded from evidence of their earlier statements that Devereaux's inaction with respect to the shop steward reports were as much due to fear of the contractors as any thing else. In addition, the evidence suggests that the job site was one of confusion and hostility, perhaps not easily brought under control by Devereaux or anyone else. Indeed, on the day of the raid, O'Neill found it impossible to interview each of the workers on the various floors of this immense building. Significantly, after Devereaux's removal, a new business agent and steward was put in place on the site. Despite O'Neill's declaration made during his meeting with Devereaux that there would be no future failure in counting all the workers, within a relatively short period of time it was found during a second raid at the Park Central Hotel that even the new union officials could not always account for non-union workers ultimately discovered working there. There was evidence that neither of the new men had been offered a bribe by the contractor. As for the credibility of the claim that some eleven non-union workers were found there during the first raid, the record also established that at no time did O'Neill charge Richard for the various benefits that would have been due to the union for those those non-union workers. Moreover, there is evidence permitting the conclusion that the matter was blown completely out of proportion by the District Council oversight committee. As for the question of the guilt of Forde, it might well have been concluded that even though targeted to receive a bribe, he did not. Certainly there is no evidence that he had anything to do with the shop steward reports that were not filed or with the daily activities on the site. Moreover, there was evidence from which one could certainly infer that he rejected a bribe offer and emphatically expressed his determination that there be no non-union men working on that job. That evidence spills over to the benefit of Devereaux as well. It could also be said that it was not inconsistent with Richard's character to have simply kept the proceeds of the $15,000 check for himself. [*7]

In short, while inferences could have been drawn supporting the guilty verdict, the task of the jury was an onerous one. Before a guilty verdict could be reached the jury was required to closely scrutinize the testimony of the People's witnesses and carefully, with an open mind, examine the credible evidence to determine if it excluded beyond reasonable doubt hypotheses of innocence that could have been drawn in this case. (People v. Wong, 81 NY2d 600, 608 [1993]).

Nonetheless, it cannot be said that, as a matter of law, the evidence is insufficient to support the verdict in this case and the motion made pursuant to C.P.L. § 330.30(1) is therefore denied.

After the defendants filed their motion pursuant to CPL 330.30(1) and on the date fixed for argument of that motion, the defendants filed a motion pursuant to subsection two of CPL 330.30. The latter motion contained an affirmation from Alternate Juror No.3, in which he alleged that while this trial was proceeding there were acts of misconduct by seven of the twelve jurors who eventually deliberated and convicted these defendants.

Specifically, it was alleged by the defense that prior to deliberations some of the jurors had discussed the credibility of witnesses, had expressed negative feelings toward the defendants, made favorable comments about the prosecution, had read and discussed press reports pertaining both to this case and to a different indictment involving another labor union, discussed and drew parallels between this case and the television show, The Sopranos, expressed anti-union bias throughout the trial and expressed their belief that the defendants were guilty as they discussed the testimony in the case prior to deliberations, all in violation of the admonitions given by me to the jurors on a number of occasions during the trial. Aside from the lengthy admonitions that I gave the jury during my opening remarks, at the close of business every day I admonished the jurors that they were not to discuss the case between themselves or with anyone else, that they ought not allow anybody to discuss the case with them, and that if anyone should attempt to talk about it, to let me know about it as soon as possible. They were told that they were not to do any investigation with respect to this case, and that if they saw something in the press that even suggested that it had something to do with this case, they were not to read any such articles. Finally, I reiterated that they were to keep an open mind until after all the evidence and the court's charge.

The case was adjourned to give the People time to respond and the defense an opportunity to reply. Meanwhile, the Commissioner of Jurors was contacted to begin working out the logistics of holding a hearing. The parties were ultimately advised that I would hold a hearing on the matter and were told that the questioning during the hearing would not delve into the deliberative process, but would be limited to the jurors' pre-deliberation conduct. As I will discuss later, it eventually became clear that the parameters of the hearing needed to be expanded to include the issue of whether or not one of the deliberating jurors became an unsworn witness and exerted improper influence during deliberations. It was understood by all parties that the defense bore the burden of proving their allegations of juror misconduct by a preponderance of [*8]the evidence and that such misconduct created a substantial risk of prejudice to the defendants. (People v. Rhodes, 92 AD2d 744, 745 [4th Dept.1983]).

All twelve deliberating jurors and the three alternate jurors testified at the hearing. At the request of the parties, before questioning began, I informed each juror generally what the inquiry would entail and told each that our only interest was in obtaining complete and candid answers to our questions. They were informed that no matter what their answers were, no one would get in trouble because of anything that they told us.

To begin with, while there is much I could say about the motives of Alternate Juror #3 in his conversations with defense investigators and regarding the preparation of his affidavit, it is not necessary to belabor that point. The fact is that many of his accusations, reiterated in his own testimony at the hearing, are corroborated by testimony of his fellow jurors. While some jurors testified that some of the acts claimed as misconduct occurred only during deliberations, there is reason to doubt this and to believe that many acts occurred before deliberations since Alternate Juror #3 was aware of them and clearly was not present during deliberations in this case. There is no reason to believe that Alternate Juror #3 was told about these things by deliberating jurors.

During the hearing I learned that the jurors became quite friendly during the pendency of the trial. One of them, a restauranteur, recommended a place for lunch where many of the jurors went together on a daily basis. These lunches provided one forum in which the jurors often discussed the case in clear violation of my admonitions and their oath. I learned that the jurors also ignored my admonitions and their oath during recesses in the jury room when all twelve principle and three alternate jurors were present.

It must first be noted that some time had passed between the verdict and the date of these hearings which may well have clouded the memories of a number of jurors. Notwithstanding that, some of the jurors had some specific recollections of the events in question and were completely candid with us. However, despite my assurances, most were not particularly forthcoming and, with few exceptions, those who did admit that they or their fellow jurors misbehaved often contradicted themselves, apparently to make their behavior more acceptable. Almost all sought to justify and rationalize their behavior. Most were unwilling to say that any of their fellow jurors did anything untoward even though we know that they did because several jurors admitted their own misconduct. While I found Juror #1 to be completely candid, Juror #2 was a very reluctant witness who did not appear to even consider many of the questions asked before answering "no." Juror #3 was rather sheepish, and when questioned about having a discussion with Juror #4 concerning the prosecutor's performance, he appeared rather embarrassed. Juror #4 contradicted himself by first admitting that the jurors voiced approval or disapproval of the attorneys throughout the entire trial but then stated that it only happened during deliberations. When Juror #4 was asked about Juror #8's negative comments concerning a defendant, he sought to protect Juror #8 by characterizing his comments as just jokes. The most stunningly forthcoming juror was Juror #5, but even he initially denied certain things regarding his own behavior before ultimately admitting to having engaged in misconduct. Juror #6, who [*9]apparently kept to himself and was engrossed with his novel during the pendency of the trial seemed completely candid, as did Juror #7. However, I believe that Juror #8 clearly mis-characterized his own behavior and that of his fellow jurors during this trial. Juror #9 was, understandably, very uncomfortable when asked questions about her fellow jurors, stating at one point, "I hate this," and "You know I can't speak for them. I can speak for myself." Juror # 10 apparently did not go to lunch with the other jurors and his answer to most of the lawyers' questions was that did not recall any of it. Juror #11, the restauranteur who organized the daily lunches, also appeared embarrassed by the tenor of the questions and, in my view, was not credible when he testified that none of what the other jurors admitted was discussed at those lunches was ever talked about. When pressed about some of what transpired, he would answer, "not really." Juror # 12 also appeared quite candid about what she could recall. Alternate #1 denied that anything she was asked about happened, but added "not in my presence" and "it didn't happen while I was there," while Alternate #2 was forthcoming about what she remembered.

Proper treatment of the claims of the defendants can only be done by examining the contentions of Alternate #3 and measuring them against the statements of the other jurors given at the hearing.

Discussion During Trial of the Credibility of Witnesses

Alternate #3 claimed that "[t]hroughout the trial of this case, and prior to deliberations, I witnessed numerous examples of my fellow jurors discussing . . . the credibility of witnesses . . . ."

Almost all the jurors recalled Juror # 5 making a variety of remarks about the defendants and the proceedings throughout the trial. While Juror #6 testified that prior to deliberations none of his fellow jurors expressed an opinion as to the credibility or lack of credibility of the prosecution's witnesses,Juror # 4 specifically recalled Juror #5 making comments like, " I don't know if I can trust this guy, or that guy, or different comments along those lines," referring to different witnesses.

Negative Comments About The Defense Made During Trial

Alternate Juror #3 further contended that negative comments about the defense attorneys and defendants were made regularly by several jurors, especially by Juror #5 who stated that the defendants were drinking at lunch and that "Hooters" restaurant was the perfect place for furthering their conspiracy.

At the hearing, Juror #4 testified that he remembered that before deliberations Juror #5 made negative comments to his fellow jurors about the defendants such as, "look at them, they're smiling, I can't believe they are smiling." He testified that Juror #5 stated that the [*10]defendants had been drinking during the luncheon recess, and that one of the defendants was not paying attention and was falling asleep in court. Juror # 4 said that Juror #5 made these comments in a joking manner, about four or five times, sometimes when all fifteen jurors were present. For his part, Juror #5 testified that he recalled Juror #8 saying that "Hooters" restaurant was the appropriate place for a payoff to take place. Additional negative comments made by Juror #8 are outlined in the discussion of comments with respect to anti-union bias.

Comments in Favor of the Prosecution

Alternate Juror #3 claimed that Juror #4 expressed unequivocal favor for the prosecutor's performance, stating that the Assistant District Attorney "really pulled a rabbit out of his hat that time," and his comments were met with approval from Jurors #3, #5, #7 and #8, resulting in a "cheering section" for the prosecutor during recesses.

Juror #3 testified that while they were in the jury room, in front of the other jurors, Juror #4 stated that the Assistant District Attorney "pulled a rabbit from his hat. " Juror #3 further testified that he did not necessarily agree with Juror #4's sentiment and testified that they "treated every lawyer fairly. When they made a good point, we pointed that out." On the other hand, Juror #4 testified that he never made the statement attributed to him adding, "I think we all went back and forth throughout this trial, based on who gave a speech or who, whatever was presented. It wasn't ever one sided." When asked, "But, meaning that yourself and other jurors would express approval and favor or disfavor and disapproval?" He answered, "Not before deliberations, no." Juror #5 thought that he remembered Jurors #3 and #4 expressing approval for the prosecutor. He stated, referring to the pre-deliberation period, "I think we - -they - - we talked - - stuff that, you know - - yeah, I mean, I didn't think we weren't allowed to, and so, we did talk about, you know, what we thought of how he was doing and you were doing . . . I mean we had to entertain ourselves somehow." He did not recall the exact words used in these discussions with Jurors #3 and 4, but he admitted talking about the prosecutor: "[W]e certainly, I think at times, were quite proud of what he was doing and how he was coming up with stuff."

Jurors Read and Discussed a Village Voice article about this case and

a New York Times article about a different union corruption case

Alternate Juror #3 also claimed that during the trial a copy of the Village Voice was brought into the jury room by Juror #3 and that #3 discussed an article in it concerning this case with Juror #4. In addition, Alternate Juror #3 asserted that Juror #8 brought into the jury room a New York Times article regarding a different labor union corruption case which was discussed by the other jurors as an example of how common corruption is within labor unions.

Juror #3 testified that he did not recall a Village Voice article that came out during the trial because he does not read the Voice but that he became aware of the article before deliberations because one of the other jurors brought it up. He stated, "I know jurors talked about [*11]it, but I didn't pay attention to it because I was reading my Yankee section . . . ." He continued, " A couple of jurors were just saying, you know, an article about the case, and that was pretty much it. It's nothing like, they didn't - - nobody really showed their opinion. That was pretty much it." Later, Juror #3 testified that he recalled an article in another newspaper about corrupt union officials. He recalled some jurors talking about that article, relating it to this case, and drawing negative inferences from it about this case. Juror #5 testified that he recalled some discussion of what he believed was a New York Times article. He does not recall if it was about this case or a different one but there was some correlation to this trial. He testified that it was a general discussion between "whoever joined in" but, "I don't know how in depth we got because we knew we had certain obligations of not talking too much about certain things." (Emphasis added). Juror # 7 testified that someone stated that there was a newspaper article about the trial, another juror acknowledged it, but "a couple of the people commented that they were being very strict about not - -." Her answer was cut off by counsel, but she testified later that it was her recollection that no one actually read the article. However, at the end of her testimony, when I asked her if her verdict was based solely on the evidence, Juror # 7's answer was unresponsive. Instead she stated, "There's one interesting thing that I thought about after this case, and that was, someone in the room had talked about, when we were deliberating - - no one ever expected the mob would sing. And I had never heard that term before. And then I was sent newspaper articles later (referring to the Village Voice), and one of them was titled The Mob Sings, and I questioned if people were vigilant about not reading the publications . . . ." Juror #8 testified that he remembered reading an article during the trial regarding the indictment of members of a different labor union and allegations that they were connected to organized crime. Juror #9 testified that she did not see the article regarding the indictments concerning a different labor union, but she did recall that Juror #8 mentioned to her fellow jurors that there was an article in the New York Times about another union corruption case. Juror #12 testified that she recalled that during the trial there was discussion in the jury room regarding a newspaper article that announced the indictment of members of a different labor union which alleged their connection to organized crime. However, she also said that there was a Village Voice article that she had her husband find and save for her until after the trial and she believed that it was about this case.

Jurors Discussed and Drew Parallels BetweenThis Case and

the Television Show, The Sopranos

Alternate Juror #3 alleged that during recesses during the testimony of the two informants, Sean Richard and Tony Rucereto, several jurors had lengthy discussions about their testimony. According to Alternate #3, Sean Richard was compared to the television character "Tony Soprano," parallels were drawn between his testimony and a Soprano's episode, and there was speculation about his participation in the witness protection program.

Juror #3 confirmed during the hearing that on more than one occasion during breaks in the trial sessions, some members of the jury drew parallels between this case and the television show, The Sopranos. He stated, "Yes, because we all liked the show Sopranos, we talked about it." Juror #4 also testified that around the time of Sean Richard's testimony there [*12]was some discussion about his testimony and the view that the case resembled a Soprano's episode. Juror #9 testified that there was probably some discussion about this case resembling the Sopranos, but went on to explain that she was not sure of the answers to any of the lawyers' questions. She stated, " [S]o I'm sort of saying yes, it could have happened, I don't know whether I said it, I don't know if somebody else said it, I don't know, but there was a feeling, yes, it happened."

Juror #5's Pre-Deliberation Statement Regarding the Defendants' Guilt

Alternate Juror #3 stated that prior to deliberations, Juror #5 stated to him and to Jurors # 3 and #4 that the defendants were obviously guilty.

Jurors # 3 and #4 testified that they do not believe that Juror #5 expressed his belief that the defendants were guilty prior to deliberations. However, Juror #5 admitted that he did express such a belief. Juror #5 testified that it was fair to say that at least on a couple of occasions he stated during trial to one or more of his fellow jurors that, based on the evidence that he had heard thus far, he believed that the defendants were guilty.

Pre-deliberation Discussion of the Trial Testimony

Alternate # 3 also claimed that prior to deliberations there were numerous times when his fellow jurors discussed trial testimony. He even noted that, at one point, Juror #1 reminded the the jury of the Court's instruction not to do so.

Juror #1 testified that "everyone as a whole was very disciplined about not discussing [the case]." But he did state that the jurors joked about my admonition not to discuss the case, "but no one was ever directly discussing the case and asked by someone else to stop." Juror #3 testified that during a recess in the trial taken at about the time testimony was received about shop steward reports, about half of the jurors had a brief discussion during which Juror #8 explained how shop steward reports can be used or misused by union officials. Juror #5 testified that it was fairly commonplace during breaks and recesses for the jury to discuss the testimony that they had just heard in the courtroom. He stated, "There was some discussion, yes. But I mean, they were careful. I mean, we were all aware that we had to keep certain things to ourselves and we couldn't talk about certain things, opinions, and this and that. We were pretty cautious about that." He stated that he did not think that any of the jurors gave their opinions regarding the defendants' guilt or innocence in the jury room (apparently drawing a distinction between giving such an opinion outside the jury room, something Juror #5 unquestionably did.) However, ultimately Juror #5 seemed to contradict himself when he testified "I mean, it's possible that we'd voice our opinions or our, you know, our (sic) certain evidence would lean some of us one way or another, but we didn't really talk that much about the specifics of guilt or innocence." In addition, Juror #6 testified that he did "recall once or twice when [Juror #1] may have - - may have said some thing to the effect of, if the conversation strayed just from - - strayed into some kind of legal matter, like why wasn't a witness called or something else or, you know, [*13]well lets talk about something else." While he stated that thereafter discussion ceased to take place when the jurors were together as a group, Juror #6 also said that he was engrossed in a novel during recesses in the trial and was not generally listening to the conversations around him. However, Juror #8 testified that he spoke to the other jurors about shop steward's reports. He was asked by defense counsel: Q: Did you talk to the other jurors . . .and explain to them the purpose of shop steward reports?

A: Of course I did. They asked me and I explained to them what it was.

Q: And this was prior to deliberations, right?

A: Yes, it was.

Q: Who was it that asked you? A: I don't - - it was - - it was several people, actually, that asked for an explanation as to what they were, why they were used, and what was the reason why they were used in regards to employees and union members.Q: Okay. And was there not also a discussion about how they could be misused?A: All I explained was why, what they were, what they were used for, and the mechanics of them.

Juror #8 was later asked: Q: Now, was this done in the jury room after the testimony about the shop steward reports?A: I believe it was done . . .when we asked to look at the evidence and we were looking at the shop reports, and certain people didn't understand what they were.

ADA: Sorry, Judge, this is during deliberations.

The Witness: That's the only time I discussed this.

The Court: Was that during deliberations? The Witness: No, it was during the deliberations. It's the only time that I explained to anybody what I was asked, what they were for.

Expression of Anti-Union Bias

Alternate #3 stated that Juror #8 "repeatedly expressed [anti-union] bias in front of the entire jury during recesses in the trial."

Juror # 2 testified that even during deliberations, Juror #8 never explained to the other jurors anything about unions and their relationship to organized crime. Juror #5 testified that he was not sure how many times prior to deliberations Juror # 8 mentioned that corruption was common in unions, but it was "maybe one or two times." Juror #7 testified that Juror #8 expressed some opinion about there being widespread corruption in unions but she could not "recall if it was before [the jury] officially started deliberations or not," although most of what she remembered concerned deliberations. Remarkably, Juror #8 testified that when Juror #9 asked him prior to deliberations about racketeering and labor corruption, he "turned to her and [*14]said, we're not supposed to discuss this and, really, don't ask me about it, please." Juror # 9 testified that she did not recall ever asking Juror #8 about it prior to deliberations, but that Juror #8 gave his opinions anyway regarding racketeering and labor corruption. Juror # 10 also recalled that prior to deliberations one of the other jurors stated that corruption was rampant in labor unions. Finally, Juror # 12 testified that Juror #8 "alluded to the fact that there has been a relationship between unions and corruption over the years" during deliberations.

Juror #8 - Before and During Deliberations

Alternate Juror #3's affirmation frequently made reference to the behavior of Juror #8. Alternate #3 described Juror #8 as a person who worked in bomb detection and anti-terrorism and who repeatedly expressed anti-union bias in front of the entire jury during recesses in the trial. Alternate #3 alleged that Juror #8 took it upon himself to explain racketeering to certain jurors and that he told them that racketeering was common in labor unions. In fact, Alternate #3 singled out Juror #8 as the person who showed other jurors the New York Times article about an indictment of different labor union officials which inspired a conversation amongst the jurors about the commonness of labor union corruption, leading to the drawing of parallels between the reported indictment and this one. According to Alternate #3, Juror #8 was one of the jurors who was part of the "cheering section" for the prosecutor and told the other jurors that the union "raid" on the job site at The Park Central Hotel was the correct course of action.

When I ordered this hearing the attorneys were instructed that they were to confine their questions to the pre-deliberation behavior of the jurors. However, during the course of the hearing we learned from certain jurors that they came to believe that Juror #8 was both involved with law enforcement and, in the past, had personal experience with unions. It became clear as we proceeded that Juror #8, a man with "strongly held opinions," both before and during deliberations, repeatedly urged those rather damning opinions upon his fellow jurors.

A review of what the other jurors remember about Juror #8 both before and during deliberations reveals the following:

Juror # 1 was asked: Q: Now, in respect to [Juror#8] or anybody else, do you remember a time during the taking of testimony - - during the period I described to you - -when you and your fellow jurors were in the jury room and one of the female jurors asked to have - - asked what was meant by racketeering? Do you remember that?

A: Yes, I believe I do.

A few questions later, Juror #1 was asked:

Q: And you remember [Juror #8] responding to that inquiry?

A: Not completely, not what he said, but I think I do remember that, yes. Q: Okay. And that - - and you also remember [Juror #8], if not during that [*15]conversation but prior to it, or around that time, also explaining that he had contact with law enforcement and was getting updates on information from law enforcement and the FBI?A: I was aware that he had worked in law enforcement in the past, but I do not recall him saying that he was getting updates or information during the course of the trialQ: And you remember him explaining that racketeering, as it related to this case, concerned how crooked contractors could skim money from projects by putting on non-union help?

A: And this would be before deliberations, we're saying?

Q: Yes. A: I don't. I recall her asking the question and some explanation being given, but I really do not recall exactly how he explained it or how he termed it.

.

Later still, Juror #1 was asked: Q: What did [Juror#8] tell you about his law enforcement background, or tell the other jurors?

A: At that time?

Q: Yes. A: I think all that I was aware of, that he had mentioned that he had worked as a police officer in the past.Q: Do you remember him, at the time there was testimony relating to shop steward reports, okay, do you remember [Juror #8] explaining how shop steward reports could be hidden or altered?

A: Not prior to deliberations, no. Q: Isn't it true that no one challenged [Juror #8] about his description of what racketeering was?A: I do not recall anyone challenging his description. As I recall it the question was raised, he gave an answer, and that was the end of the discussion.

Juror #1 finished his testimony about Juror #8's definition of racketeering by stating, "I recall it, and I saw it at the time as merely giving someone the definition of a word. I don't believe that he was giving it as an expert, from having been a police officer."

Juror # 2 testified, when asked if she recalled Juror #8 explaining the shop steward reports to the jury at the time of the testimony concerning the reports, "Well, he seemed to know, I mean he would explain certain things to us." This, it turned out, occurred during deliberations according to Juror #2. I later asked the juror, with reference to the deliberations, "Did he ever offer any explanation as to how shop steward reports might fit into any level of corruption?" Juror #2 answered, "Well, on those reports some of us didn't understand it so we all, you know, it was a general discussion and he was part of it, you know, talking about it." [*16]

Juror # 3 testified that he only found out on the day of the hearing what Juror #8 actually did for a living. Juror #3 stated that during the trial, when there was testimony about shop steward reports, Juror #8, along with about half of the jurors, had a "very brief" conversation about them. When Juror #3 was asked, "[W]hether there was discussion, and again with [Juror #8]providing some explanation, of what shop steward reports are and how they can be used or misused by union officials?" Juror #3 answered, "He did talk about that." When answering questions regarding Juror #8's explanation to a female juror about racketeering, Juror #3 said that this explanation was given during deliberations. He stated: "[Juror#8] put his insight during deliberations . . . He put his, he gave the explanation during."

Juror #4 testified that he believed that Juror #8 was a retired police officer, although they did not have a full discussion on the subject. He said that during deliberations, Juror #8 provided insight into what shop steward reports are but not that they are "tied into corruption." Juror #4 stated, "Whenever somebody kind of had a question in regards to trying to figure out what a shop steward even was, or maybe the more technical aspects of how a union worked, [Juror #8] did voice his opinion, or not his opinion, his knowledge of what it was, more so than probably other people in the jury." (Emphasis added). He continued by saying that Juror #8 clarified things that the jury heard in the courtroom about unions and offered his understanding of how it worked.

Juror #5 testified that he recalls Juror #8 was involved with surveillance or security systems. Juror #5 testified that prior to deliberations, at the lunches that the jurors would have together, Juror #8 said that he was involved with unions and had some experience with unions. While discussing the evidence, Juror #5 said that Juror #8 stated, "We did that stuff all the time, or that happens all the time . . . ."

Juror #5 was asked:

Q: Do you remember one of the older women asking him, [Juror #8], or just asking in general, for some explanation of, you know, sort of about unions and - -

A: Racketeering and specific -

Q: - - and racketeering ?

A: Yes, I do recall that. Q: Did you find, in your observations, that in fact several of the jurors, maybe the older women, were deferring to [Juror #8] in terms of his opinion?

A: His expertise in the matter?

Q: Yeah A: Yes . . . Well, like we would refer to another juror on restaurant recommendations for lunch, because he was a chef.

Later, Juror #5 was asked: Q: [W]hen [Juror #8] was saying that's a common practice in unions based on my experience, is it fair to say that he was talking about the alteration of shop steward's reports, accepting bribes, things of that nature?[*17]A: I think it was kind of general - - yeah, definitely those things would be part of that. Not that I did not have my own preconceived ideas coming into this all.

Q: And what were they? A: That, you know, I've seen movies and I've, you know, seen news and TV and, you know, that things like this can happen and are kind of part of the fabric of, you know, unions and not only unions but the world that we live in."

Juror #5 continued on that subject:

A: I mean, you know, did it help solidify my pre -

Q: Did it?

The Court: Let him finish.

Q: Your pre-existing conceptions about union corruption? A: Well, certainly, you know, hearing it certainly helps, and so yeah, I would say somewhat . . . ."

Later still Juror #5 was asked: Q: It's fair to say what [Juror#8] was saying in there reinforced, confirmed, negative preconceptions that you had about unions and union corruption, correct?A: Well, it confirmed that, you know, he had some experience with unions, and as he had said, it's, you know, it's common, or it happens, or I've seen it, I've lived it. So certainly, I took that and, you know, kind of confirmed some of my thoughts.

Finally, these questions: Q: "[D]id the experience of [Juror #8], as he related it, okay, aid in corroborating what had been - - what had been presented? You know what I mean by 'corroborating', support, what had been - - what you were hearing in the courtroom in terms of the prosecution's case?A: Well, no more than, I'll use the analogy you know, of an expert for, let's say, a wine connoisseur tasting a glass of wine and saying ; Wow, that's real good.The Court: I take that to mean no more than one would benefit from the experience of an expert in the field.

A: Or some knowledge of how that worked

The Court: Something special. A: Yeah, I mean - - I wouldn't say personally it gave me - - it helped me decide. It had nothing to do with helping me decide. But it certainly gave some comfort when people were confused or didn't understand certain things that happened in the trial, questions, terminology, and then he would explain it based on his experience. That certainly was helpful.

Juror #7 testified that she learned during the trial that Juror #8 was involved in law enforcement. She stated that she didn't speak to Juror #8 very much outside of deliberations. However, she recalled that Juror #8 stated during deliberations that he had experience with unions. She recalled that his comments about unions were negative and he stated that there was a [*18]lot of corruption in them.

Juror #9 testified that Juror #8 told her about his law enforcement experience and she believed that he had greater experience with union corruption than the other jurors. However, she characterized Juror #8's view by stating, "I wouldn't say his experience, I would say his opinions." Still, she went on to say that he certainly had more experience than she did, and "[H]e was - - I don't want to say a know it all, because he wasn't a know it all, but it was, sort of, I guess, because his career was what it was, he thought that he had more experience in this sort of stuff than the rest of us." She continued by stating that it was not that he talked specifically about the case, rather it was just little comments here and there about how he was familiar with this "kind of stuff."

Juror #11 testified that he remembers that Juror #8 was in the "security profession" but that he did not remember Juror #8 "pontificating" about union corruption or his experience with law enforcement. This was offered by the juror when he was asked if he heard Juror #8 giving an explanation to another juror. No one had suggested that Juror #8 was "pontificating" to his fellow jurors. At the time that this Juror testified, the questioning was limited to pre-deliberation issues.

Juror #12 testified that during deliberations she learned that Juror #8 definitely had previous experience with unions that was related to his work. She stated that Juror #8 "alluded to the fact that there has been a relationship between unions and corruption over the years." When pressed on the subject of what he said, she retreated stating that she did not want to misrepresent what he said. Later, when I questioned her, she testified, "I don't recall that it was in terms of corruption. It was just in terms of how things were run." We continued with the following exchange: The Court: Did he share with you information that he said he had acquired in his, in the course of his career, which was not referred to in the testimony?

A: Yes. The Court: And I take it that when he shared that information, he did so by, at some point, prefacing it by saying, I have this extensive experience in this field. Correct?

A: Yes. The Court: And did the information that he then shared become part of your deliberations?

A: I don't believe so . . . No, not to my mind. I can't speak for anyone else, but it really didn't affect my feelings.

Alternate Juror #2 testified that she recalled that Juror #8 was a former police officer who currently woks for a security firm. She stated that he had stories about terrorism and buildings that were under surveillance but that he was actually an accountant. She remembers [*19]him talking about the shop steward reports around the time of that testimony.

Juror #8 is, in fact, an accountant for a security company who's job, as he put it, is to "count the beans." His experience with unions and how they operate derives from his having been a union member when he was in college and, twenty-five years ago he was an accountant for the plasterer's union in New Jersey. He testified that he never explained racketeering to the another juror and that he didn't really have experience dealing with unions. When questioned about his ties to law enforcement, Juror #8 testified that he never told anyone that he used to be a police officer, or that he had confidential information regarding security threats or terrorist activities. When he was questioned about the information regarding unions that he was alleged to have provided to the other jurors, he admitted that he explained to them, both before and during deliberations "what [shop steward] reports were, what they were used for, and the mechanics of them. Being an accountant I've dealt with them before, for wages, pensions, annuity, vacation stamps and things of this sort." Juror #8 went on to testify that he did not talk about how they could be misused, that he never said that there was widespread corruption in unions, that no one ever spoke about this case being similar to a Sopranos episode, and that he did not supply the jury with any information that was not in testimony.[FN3]

Conclusions

The issue here is whether a substantial right of the defendants' was prejudiced by the jurors' behavior. '[N]ot every misstep by a juror rises to the inherently prejudicial level at which reversal is required automatically. Because juror misconduct can take many forms, no ironclad rule of decision is possible. In each case the facts must be examined to determine the nature of the material placed before the jury and the likelihood that prejudice would be engendered." (People v. Brown, 48 NY2d 388, 394 [1979]).

It is clear from the accumulation of hearing evidence in this case that the jurors flagrantly ignored my admonitions not to discuss the case. If nothing else, the hearing established that there was considerable discussion between certain jurors, sometimes in the presence of all jurors, not only at recesses but during group lunches held in a public restaurant. While jurors sought to minimize the extent of these discussions, Juror #5 testified that it was commonplace for the jury to leave the courtroom, enter the jury room and talk about what had just transpired. It [*20]was during these discussions that "certain evidence would lean some of us one way or another but we didn't really talk that much about the specifics of guilt or innocence." There is no way to determine at this juncture exactly who said what but it is certain that at least some of these discussions occurred with alternate jurors present. In People v. Marrero, (83 AD2d 565 [2nd Dept. 1981]), the Court affirmed the Trial Court's decision to set aside the verdict when it found that prior to deliberations the jurors and alternate jurors had engaged in extensive discussions of the evidence so that it "appear[ed] that the verdicts of the jurors may have been affected by outside influences, to wit, the opinions of alternate jurors, and extraneous material." (Id.). While some jurors apparently tried to adhere to my admonitions, some saw them as something of a joke. Some jurors acknowledged that they ignored my admonitions, and some sought to justify their conduct by making a distinction between what they believed was acceptable discussion outside of the perceived parameters of the Court's admonitions and what was strictly prohibited by the admonitions. As one juror put it, certain discussions between jurors during the trial were something that happened "before we were officially deliberating." (Emphasis added.)

I believe that the defendants proved by a preponderance of the evidence that the following occurred during the trial:

1) One of the most vocal and opinionated jurors, during recesses and at other times, openly discussed with other jurors the credibility of witnesses who testified at the trial.

2) The same juror and others discussed the defendants in negative and sarcastic terms, reaching conclusions, unsupported by any evidence, which they conveyed to other jurors.

3) A group of jurors appeared to have formed a cheering section for the prosecution, clearly permitting the inference that during the trial a number of jurors had already made up their minds and conveyed their thinking to other jurors.

4) A New York Times article about a different case of union corruption was in the jury room and was discussed in a manner meant to demonstrate that these defendants were also corrupt. Likewise, a copy of the Village Voice which carried an article about this case may have been read by jurors and discussed by some of them in the jury room. While the information in the article did substantially conform to the evidence at trial, it also provided additional negative information. Specifically, it stated that corruption has been a problem in the past in the carpenter's union and that the former president of the local, Forde's predecessor, had been convicted of corruption charges.

5) Parallels were drawn by jurors during their pre-deliberation discussions between the popular television show "The Sopranos" and this case. That show was loosely fashioned after the exploits of the DeCavalcante crime family, the very crime family that Sean Richard was associated with. In fact, certain episodes of the show resembled in many ways the [*21]factual claims of the prosecution in this case.[FN4] It is for this reason that the attorneys repeatedly questioned the prospective jurors during voir dire about their ability to separate this case from that television show. Nonetheless, both Juror #4 and Juror #7 recalled the jury having discussions about the union members in the audience reminding them of The Sopranos. Juror #7 stated that there were "a lot of characters that you thought typically might fit into The Sopranos." Therefore, the union members in the audience made them feel "uncomfortable" and "intimidated" because, as they both stated, "they weren't certain which side they were on." This can only be interpreted to mean that the jury believed that some union members who were in the audience were, as they are on The Sopranos, criminals. The pre-deliberation discussions about the show re-enforced a view that this union may well have been corrupt and in league with members of organized crime, an association which all parties went to great pains to disabuse the jury of during trial.

6) At least one juror expressed to several others at a fairly early stage of the trial that he had concluded that the defendants were guilty, unquestionably affecting the thinking of other jurors before all the evidence and argument was heard and before the jury received the all-important charges regarding the assessment of circumstantial evidence and the need for corroboration of the accomplices' testimony.

7) There is evidence that one juror, who stated during voir dire that while he had heard negative things about unions, he was nonetheless able to maintain an open mind, in fact, did not and his mind was closed to the possibility of innocence at a very early stage in the trial. Additionally, he did not hesitate to share his views with his fellow jurors. Anti-union bias was also openly expressed by another juror, whose answers during voir dire left the impression that he entertained no such bias. The net effect of his belief, hidden during voir dire but advertised to his fellow jurors both before and during deliberations, was to solidify another juror's preconceived ideas about union corruption.

8) There were a number of pre-deliberation discussions about the trial testimony between jurors during recesses and at lunch in a public restaurant. These discussions at times included explanations by the jurors as to the meaning and significance of the evidence that they just heard. Some discussions seem to have included only some of the jurors and some also included alternate jurors. In any event, these "deliberations" were a willful violation of my admonitions as well as a violation of the provisions of C.P.L.§ 310.10.

(9) Finally, it is the defense contention that Juror #8 became an unsworn, unexamined witness in the jury room, and exerted improper influence on his fellow jurors. Although I was originally tempted to dismiss Juror #8 as an ineffective braggart, during the hearing I became very concerned about the effect of his opinions on his fellow jurors and the verdict in this case, since he clearly and falsely held himself out to be a person with both law [*22]enforcement and labor union experience. In his role of "expert" he offered explanations of the function and significance of shop-steward reports, both before and during deliberations, that went beyond the mere exercise of common sense but purported to come from his special knowledge and expertise. In fact, he had no such expertise. However, it should not matter that Juror #8 was not the expert he claimed to be. What is important is that many of the jurors believed him to have some special knowledge which was of use to them in explaining the evidence and, worst of all, in enhancing the evidence.

In sum, although some of the acts of juror misconduct in this case could be explained away if they stood alone, the problem here is that there were so many incidents that one must look at the cumulative effect of this behavior on the jurors' deliberations and verdict. Clearly, this is not a case in which a private opinion about guilt shared by one juror with another may be deemed inoffensive. (cf. People v. Rhodes, 92 AD2d 744 [4th Dept 1983]). In this case there was frequent pre-deliberation discussion about the evidence conducted in public and with alternate jurors present. (See, People v. Marrero, 83 AD2d 565 [2d Dept 1981], where prior to deliberations the jurors and alternate jurors had improperly engaged in extensive discussions of the evidence so that it "appear[ed] that the verdicts of the jurors may have been affected by outside influences, to wit, the opinions of alternate jurors, and extraneous material."). In addition, there was the expression of totally unfounded negative opinions about the defendants' conduct during trial, the pre-mature determination of guilt shared freely with other jurors, the association of this case with newspaper articles and a television show where all the union members are portrayed as criminals and the apparent desire of some jurors to see the prosecution prevail in this case. (See, People v. Romano, 8 AD3d 503 [2nd Dept. 2004]). All of that must be viewed along with Juror #8's lack of candor during voir dire (see, People v. Rivera, 304 A.D.2d 841 [2d Dep't. 2003] "[R]eversal 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 . . ."), as well as his offering opinions and evidence to his fellow jurors based on his claimed involvement with law enforcement and personal experience with corrupt unions. (See, People v. Maragh, 94 NY2d 569, 574 [2000], noting the "grave potential for prejudice" when a juror who is a professional shares their expertise to help her fellow jurors reach a conclusion about a material issue at trial. "Other jurors are likely to defer to the gratuitous injection of expertise and evaluations by fellow professional jurors, over and above their own everyday experiences, judgement, and the adduced proofs at trial." Id.). It is my view that all of these acts of misconduct undoubtedly combined to have a detrimental effect on the deliberations in this case and created a substantial risk of prejudice to the rights of the defendants by coloring the views of the deliberating jurors and improperly influencing them.

Most troubling of all about the jury's behavior, is the fact that this was a wholly circumstantial case in which the jury was charged with the responsibility of not only assessing the credibility of the witnesses (in the case of the informants no small task), but also searching the evidence with great care to be certain that accomplice testimony was corroborated and inferences of innocence were excluded by the evidence before finding the defendants guilty. I am deeply troubled by the distinct likelihood that, given the unauthorized pre-deliberation [*23]discussion of the evidence and the open expression of opinions about guilt and bias about unions, these jurors may well have failed to appreciate the delicacy and difficulty of their task and overlooked the standard of proof to which the prosecutor was held. I quote my late colleague, Justice Shirley Levitan, in a case remarkably similar to ours, "The effect of this extraneous information upon the jury served only to bolster the weak testimony of the [] informant. Not only was the informant's testimony nebulous, but the informant himself proved to be of questionable credibility . . . Given the weakness in the People's case, any possible coloring of the views of the jurors created a substantial risk of prejudice to the rights of the defendant[s] . . . The cumulative effect of [the jury's] actions, especially where the lynchpin to the prosecutor's case is a witness of dubious reliability, makes it impossible for the court to conclude that defendant[s] have not carried [their] burden by a preponderance of the evidence. The various extrinsic matters shore up a witness of questionable trustworthiness." (People v. Saunders, 120 Misc 2d 1087, [Sup. Ct., NY County 1983]).

Under these circumstances it is impossible for me to conclude that the defendants were not substantially prejudiced by the actions of these jurors.

The motion made pursuant to C.P.L.§ 330.30(2) is therefore granted.

The foregoing constitutes the decision and order of the court.

Dated: April 26, 2005

____________________

Jeffrey M. Atlas, J.S.C.

Footnotes

Footnote 1:1 I note that Richard had previously testified that he obtained the International Agreement before S&S ever started the job at the Park Central Hotel. Rucereto testified, consistent with his plea allocution, that it was he who told Forde and Devereaux that S&S was in the process of obtaining an International Agreement.

Footnote 2: The record reflects that at a time much closer to the event Richard gave a number of significant inconsistent statements concerning the amount of money he claims was given to the defendants, as well as who made the payment and to whom it was given. Rucereto also made a number of statements on important issues to law enforcement before the trial which turned out to be inconsistent with his trial testimony.

Footnote 3: As far as his ties to law enforcement go, Juror #8 is clearly what is referred to as a "buff." We had a foreshadowing of this during voir dire. When I asked the entire panel if any of them had friends who were in law enforcement or if they themselves were in law enforcement, Juror #8 raised his hand and told us, "I presently work with former NYPD detectives and bomb squad people, I don't know if that's going to affect - - my field, my job, I work for a bomb detection company." In regard to his beliefs regarding union officials, the exchange was as follows: Q: [D]o you come into a room saying, you know . . . "I'll meet 'em on the street , no problem. Maybe . . . I wouldn't have them over for dinner." How about you [Juror #8]? A: I have no problem with that. I've been a Union member when I was in college. Q: Okay, you don't presume anything? A: There's no reason to presume. They come in with a clean slate. A later exchange regarding his ability to judge the case based on the evidence was as follows : Q: [Juror #8], the point is the quality of the goods, so to speak, the evidence, you can - -. A: Without a doubt.

Footnote 4: Coincidentally, the Chief of the Investigation Division who oversees the Labor Racketeering Unit of the New York County District Attorney's Office and who generally supervised the investigation and the prosecution of this case, was a consultant to "The Sopranos" and even appeared as an actor on the show.