People v Ochoa

[*1] People v Ochoa 2005 NY Slip Op 52055(U) [10 Misc 3d 1060(A)] Decided on December 16, 2005 Supreme Court, Bronx County Massaro, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 2005
Supreme Court, Bronx County

THE PEOPLE OF THE STATE OF NEW YORK,

against

MARK OCHOA, and MICHAEL FIGUEROA, Defendants.



1063/2003



For the People of the State of New York

HONORABLE ROBERT T. JOHNSON

District Attorney of Bronx County, New York

By: SARA I. JACOBSON, ESQ.

Assistant District Attorney

For Mark Ochoa

DAVID SEGAL, ESQ.

For Michael Figueroa

JON M. SILVERI, ESQ.

Dominic R. Massaro, J.

Following a jury trial, Mark Ochoa was convicted of one count of Robbery in the Second Degree (Penal Law § 160.10 [1]), and Michael Figueroa was convicted of two counts of Robbery in the Second Degree (Penal Law § § 160.10 [1], [2] [a]), and one count of Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01 [2]). Now come Defendants to set aside the verdicts pursuant to CPL § 330.30 and to have the Court recuse itself from deciding said motion. The motion is granted to the extent of ordering a hearing regarding CPL § § 310.30, 260.20, and juror coercion issues; it otherwise is denied.

Findings of Fact

The People's Direct Case

On January 31, 2003, Fernando Cruz took his "X-Box" to the residence of his paramour Madeline Ruballo at 866 Hunts Point Avenue. Also present were Defendants and three to four others. During the night, everyone drank alcohol and used drugs, the majority of which was purchased by Mr. Cruz. Eventually, Mr. Cruz announced that he could not buy anymore drugs because he had no more money. The following morning, Defendant Figueroa informed Mr. Cruz that he could sell the X-Box for $150. Mr. Cruz stated that he was not interested. At [*2]approximately 2:30 p.m., Mr. Cruz, who was holding his X-Box, and Ms. Ruballo, who was in the bathroom, were preparing to leave the apartment. Defendants were the only other people present. Defendant Figueroa went into the bathroom, gave Ms. Ruballo a hug and kiss, and said, "I'm sorry." Ms. Ruballo responded, "Don't be silly. There is nothing for you to be sorry for." Moments later, as Mr. Cruz headed towards the doorway, Defendant Figueroa positioned himself in front of Mr. Cruz while Defendant Ochoa positioned himself behind him. Defendant Figueroa then pulled out a boxcutter that belonged to Defendant Ochoa and grabbed Mr. Cruz's X-Box. A struggle ensued between Mr. Cruz and Defendant Figueroa which continued into the hallway, during which, Defendant Ochoa struck Mr. Cruz on the back and pulled his jacket over his head. Ms. Ruballo then came out of the bathroom and attempted to assist Mr. Cruz. However, Defendant Ochoa held her from behind and she was unable to break free. Defendant Figueroa punched Mr. Cruz repeatedly in the face causing him to fall. He then repeatedly kicked him in the head and body, gaining control of the X-Box. As Mr. Cruz attempted to get up, he fell again, at which point Defendant Figueroa attempted to cut his face with the boxcutter. However, Mr. Cruz covered his face with his hands, and, as a result, his left hand was cut. Defendants fled the scene with the X-Box.

Officers Altagarcia Rivera-Caban, Kaeron David, Michael Mauer and Juan Balleste soon arrived at the location, followed by an ambulance. Ms. Ruballo was afraid to state that the incident occurred in the apartment, as drugs were being used there. Instead, she said that the incident occurred as Defendants, who were allegedly strangers that she recognized from the neighborhood, followed her and Mr. Cruz into the building. She also falsely claimed that she attempted to jump on top of Defendants, was assaulted by them, and, in addition to the X-Box, observed Defendants steal fifty dollars from Mr. Cruz. While Officer David placed Mr. Cruz in the ambulance, Officers Mauer and Balleste conducted a canvass with Ms. Ruballo and she soon identified Defendant Ochoa. Mr. Cruz subsequently identified him as well and was then taken to Lincoln Hospital. Meanwhile, Ms. Ruballo was taken to the Forty-first Precinct Stationhouse where she composed a written statement containing the same false information. Defendant Figueroa later surrendered himself.

As a result of the stab wound, Mr. Cruz was bleeding when EMS arrived and suffered two one to two centimeter lacerations on two of his fingers and one two to four centimeter laceration on another finger, requiring four sutures, four sutures and six sutures, respectively. Mr. Cruz also suffered multiple abrasions to his face, forehead, nose, neck and right side of his rib cage. Furthermore, he felt dizzy, temporarily lost feeling in his hand, had pain in his head and neck which lasted for approximately one month, and, at the time of trial, which was more than one year after the incident, still claimed pain in his hand.

Defense Case

Neither Defendant called any witnesses.

Prosecutor's Summation

Towards the end of her summation, the prosecutrix stated, "Defendants have no burden of proof. Nor do they have any obligation to take the stand, nor can you draw any inference from it but there is a fact that remains. We know far less about these gentleman" (Tr. at 833-35). When defense counsel objected to this statement, the Court instructed the jury to "disregard about what we know and don't know about these Defendants. There is no obligation for them to do anything [*3]at all" (Tr. at 835). Defendants did not request any further relief.

Jury Deliberations and Rendering of the Verdict

On the afternoon of the third day of deliberations, the Court received two notes. The first, which was submitted at 1:25 p.m., stated "We the jury have reached a verdict." The second, which was submitted at 2:20 p.m., stated "Personal Note from Juror 1. Your Honor, I do not feel comfortable reading this verdict." The note was signed by the foreperson, Randy Garcia. The court summoned the foreperson to clarify what exactly was meant by this note in order to determine how to proceed. The following record was made concerning this clarification: THE COURT:The Court has received two notes, one, they reached a verdict, which you know. You both gentleman saw one personal note from the foreperson that he doesn't feel comfortable reading the verdict. For the record, the Court asked the foreperson to come down, he sat right here and the foreperson was inquired into why he didn't feel comfortable. He said, well, he didn't want to go through and have to say what the verdict was, never telling me the verdict. I told him the way it works. The clerk asks him and says, Have you reached a verdict? Yes. As to the first count on Mr. Figueroa, guilty or not guilty. As to the first count on Mr. Ochoa, and I explained to him how it goes and all he has to do is answer guilty or not guilty. And then he seemed relieved and he said, "Oh, okay, fine."MR. MECHANIC:He was afraid he's get confused?THE COURT:Yes, he was afraid he had to read out everything. I said, no, you're asked a question. It's his first experience.MR. MECHANIC:I have no problem.THE COURT:So you just have to say yes or no or guilty or not guilty.MR. MECHANIC:Not comfortable meaning you can't harken it to mean something else.THE COURT:No, no. I told him whatever the verdict is, if there is a guilty verdict or not guilty verdict, one or the other side asks for the jury to be polled and all he has to do is answer each one saying yes or no. So we are ready to proceed.MS. JACOBSON:Was there an inquiry made of Juror Number [*4]1 as to whether his discomfort has to do with not agreeing with the verdict or not being unanimous?THE COURT:Nothing like that at all. I told you exactly what he said. He said he was uncomfortable having to report the verdict. He thought he narratively had to report, and I told him, no, it was a question and answer and then he said okay.MS. JACOBSON:Okay.THE COURT:It had nothing to do with the substance of the verdict, which I cautioned him not to say, nor did he volunteer it.

(Tr. at 920-22).

Due to the fact that all of the parties involved were satisfied and did not seek to have the foreman return with them present to further explore the issue, the Court continued to the rendering of the verdict.

Later, upon receipt of the verdict sheets, the Court observed that the verdict sheet for Defendant Figueroa was marked in accordance with the above-noted verdict. However, the verdict sheet for Defendant Ochoa indicated that he was not guilty of Robbery in the First Degree, guilty of the first count of Robbery in the Second Degree, but left the remaining two counts blank. As a result, the following occurred in open court: THE COURT:I note, Mr. Foreperson, that with respect to one of the verdict sheets, you have made four checks and with respect to the other verdict sheet you only made two checks. Did you mean to fill in the other two checks? Let it be shown to him.THE FOREMAN:Yes.THE COURT:You did, okay. Please give him a pen. You mean to fill them in?THE FOREMAN:Yes.THE COURT:Then check them according to the way they should be checked. . . . Please pass them back.MR. MECHANIC:Your Honor, may we approach?THE COURT:Let me first see. Well, okay. Mr. Foreman, it is correct that they are checked differently from the other sheet?THE FOREMAN:Yes.THE COURT:It is correct. That's what I wanted to ascertain.[*5]

(Tr. at 923-25).

The two marks inserted by the foreman both indicated that Defendant Ochoa was not guilty of the remaining charges. The jury then rendered its verdict. Afterwards, each juror was polled, including the foreman, and they all indicated that the verdict rendered was, in fact, their verdict.

Post-Conviction Motions

In the twenty months since the verdict was announced, Defendants, either pro se[FN1] or through their various attorneys,[FN2] have filed over three dozen sets of motion papers, the vast majority of which seek to set aside the verdict pursuant to CPL § 330.30, or hold a hearing thereon.[FN3] Specifically, Defendants seek to set aside the verdict on the following grounds: [*6] 1. The prosecutor committed misconduct in her summation.2. The foreman convicted Defendant Ochoa due to misconduct and coercion by the other jurors and the Court.3. The foreman impermissibly marked the verdict sheet without first returning to the deliberating room with the other jurors.4. Defendants trial attorneys were ineffective because they: complained about the drive to court; inadequately communicated with their clients; were too preoccupied with other clients; tried to coerce Defendants to plead guilty; failed to object to prosecutorial misconduct on summation; were not aware that the foreperson changed his mind regarding the verdict; failed to contact the foreman for the hearing; failed to file post-trial motion papers; did not inform a supervisor about the status of the case; did not move to have the Court recuse itself from the hearing; failed to contact alibi witnesses or mention them at trial; failed to send an investigator to the premises to take photographs; failed to obtain videotapes of the incident; and failed to provide Defendants with paperwork from the case.5. The Court's conversation with the foreman constituted a material stage of the proceeding, and not a ministerial task, and, as such, the absence of Defendants and their attorneys constituted reversible error and a violation of CPL § § 310.30 and 260.20.6. There was legally insufficient evidence to establish that Mr. Cruz suffered a physical injury.7. Mr. Cruz committed perjury when he testified that Defendant Ochoa struck him on the back.8. The People failed to disclose Brady, (see Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 [1963]), evidence, namely a videotape of the incident, staff from 866 Hunts Point Avenue who witnessed the incident, and Ms. Ruballo clearing Defendant Ochoa of any wrongdoing.[*7]9. These materials constitute newly discovered evidence.

In support of the CPL § § 310.30, 260.20, and juror coercion issues, Defendants obtained an affidavit from the foreman, Randy Garcia, who stated that the verdict against Defendant Ochoa was not his just and true verdict because he felt coerced and pressured by his fellow jurors and the Court. More specifically, Mr. Garcia stated, in pertinent part, that: I went to see Judge Massaro and he spoke to me. . . . I told him that I would refuse to read this verdict out in open court. I told him I do not feel comfortable rendering this verdict or speaking it aloud. Judge Massaro told me that the statute compelled me to read the verdict and that the clerk would read the count and I could say guilty or not guilty. What Judge Massaro did not understand, is not that I would have had trouble understanding our verdict, it was that I did not want to give that verdict aloud in open court. The attorneys could have explained to me if they were in the room, that my verdict had to be my own, tried and true, and that if we could not agree there is nothing morally wrong with a hung jury. . . . I know that I cannot impeach my own verdict or take it back, but under the circumstances that occurred that day, my position is that was not my verdict. I am willing to testify at a hearing and tell the Court how this injustice occurred in detail and how strongly I feel about it. I believe the error occurred when . . . the Judge . . . reached the erroneous conclusion that I did not have the right to either change my mind, speak my true mind, or hold out. . . . I urge this Court to consider, though I bear personal responsibility for this mistake, that the cost of a new trial is a drop in the ocean next to an innocent man's life.

Upon granting Defendants' motions to the extent of ordering a hearing (see People v. Smith, 59 NY2d 988 [1983]; People v. Ciaccio, 47 NY2d 431 [1979]) in which the foreman would be called as a witness, it was revealed to the Court that the foreman had since moved to Florida. In scheduling the hearing, the Court noted that the party who carried the burden at the hearing would be the party responsibly for funding for the foreman's transportation. For the reasons set forth below, it was determined that Defendants had such a burden.

Defendants subsequently filed motions claiming that the Court should recuse itself from deciding the instant motion because it: was a potential dispositive witness; would be acting as an unsworn witness if it relied upon its own recollection; and had a relationship with the Clerk, who was to be a witness, that was "too close" to allow it to make an impartial determination.

CPL § 330.30 Hearing

Randy Garcia testified that he knew from the jury instructions that the verdict must be unanimous and if it was not, the jury was allowed to be hung. Nevertheless, he stated even though there was not unanimous, he sent the Court a note on behalf of the entire jury indicating that they had reached a verdict. He claimed that this note was sent because jurors other than himself were confused as to whether they could be hung and if they had to be unanimous. Mr. [*8]Garcia also alleged that he was coerced due to a "vibe" inside the jury room which caused him to feel "mentally beaten." This included other jurors being primarily concerned with returning home and placating each other. However, Mr. Garcia acknowledged that he was never threatened nor attacked.

Mr. Garcia further testified that, due to these events, he sent a note to the Court entitled "Personal Note from Juror 1," to inform it that he "was not comfortable reading the verdict." Upon submitting this note, he was taken to the robing room where only he, the Court and the Clerk were present. He informed the Court that he did not feel comfortable reading the verdict and wanted someone else, possibly the Clerk, to do so. The Court told him that it was his duty as the foreman to read the verdict, and all he would be asked is if the jury found one defendant guilty or not guilty of a given charge and then asked if it found the other defendant guilty or not guilty of a given charge. At no time was the verdict made known or requested. Mr. Garcia later read the verdict in open court with all parties present. The jury was polled and Mr. Garcia stated that the verdict was his. However, Mr. Garcia claimed that he hesitated when polled to indicate that the verdict was not his.

Regarding the events after the trial, Mr. Garcia first testified that he contacted Defendant Ochoa's attorney after finding his telephone number in the phone book. However, after being informed that the attorney's phone number was not in the phone book, Mr. Garcia changed his testimony and stated that he talked to a woman named "Leyda," who he met through a friend who owns a café on 150th Street, and she put him in contact with the attorney. In preparing the affidavit, Mr. Garcia first testified that he, and not the attorney, chose the words. However, each time he was asked about a specific phrase, he stated that it was the attorney, and not him, who chose the words.

Discussion

A. Delay between Verdict and Sentence.

CPL § 380.30 (1) states that a "sentence must be pronounced without unreasonable delay." However, "[t]he passage of time standing alone does not bar imposition of sentence. . . . If the delay is caused by legal proceedings or other conduct of the defendant which frustrates the entry of judgment, it is excusable." People v. Drake, 61 NY2d 359, 365-66 (1984). See also Matter of Weinstein v. Haft, 60 NY2d 625 (1983); People v. Turner, 222 AD2d 206, 207-08 (1st Dept. 1995) ("[T]here is no specific time during which defendant must be sentenced. . . . [W]here the delay is not protracted and plausible reasons are offered to explain it, . . . it is not unreasonable."), lv. denied, 88 NY2d 855 (1996). Indeed, the First Department has held that delays from thirty-seven months (see People v. Robbins, 232 AD2d 269 [1st Dept. 1996], lv. denied, 89 NY2d 928 [1996]), to six and one-half years (see People v. Lopez, 228 AD2d 395 [1st Dept. 1996], lv. denied, 88 NY2d 1022 [1996]), were not unreasonable when due primarily to the actions or conduct of a defendant.

In the present case, the delay between the time the verdict was announced, April 27, 2004, and the time when defendant's sentence was pronounced, December 16, 2005, was the result of Defendants numerous post-trial motions and the hearing thereon. This was due to the complexity of the issues involved, the difficulty in locating the primary witness and arranging his transportation, as well as various scheduling constraints, that the hearing took several months to commence. Therefore, Defendants invited the delay in sentencing and are not thereby allowed to [*9]receive a benefit because of it. This is especially true here, as it was repeatedly explained to Defendants that their continuous filing of motions would only delay the ultimate disposition. Nevertheless, despite having been so advised, they continued in their repeated filings.

In addition, Defendants' claim that they were not responsible for any delay regarding the hearing, including producing the witness, because they met their burden by filing the foreman's affidavit is in direct contravention to CPL § 330.40 (2) (f) and (g), which state that if a motion to set aside the verdict has not been summarily granted or denied, "[the Court] must conduct a hearing and make findings of fact essential to the determination thereof . . . [and] [u]pon such a hearing, the defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion." See generally People v. Gruden, 42 NY2d 214 (1977). Here, the papers submitted clearly raised a factual dispute. Moreover, for Defendants to claim that they had no burden after producing the affidavit from the foreman contradicts both their moving papers, in which they requested a hearing as an alternative to granting their motions outright, as well as the affidavit itself, in which the foreman agrees, and even appears to desire to testify at a hearing.

B. Recusal of the Court.

Judiciary Law § 14 provides, in pertinent part, that "[a] judge shall not sit as such in . . . [any] proceeding to which he is a party . . . or in which he is interested." As the Court is neither a party nor one with any type of interest in this matter, recusal is not warranted. Therefore, "[a]bsent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal." People v. Moreno, 70 NY2d 403, 405 (1987). In determining whether a court properly exercised its discretion in such a circumstance, the Court of Appeals decision in the consolidated cases in People v. Alomar, 93 NY2d 239 (1999), is instructive. In the first case, the defendant argued that the trial court improperly refused to recuse itself from a reconstruction hearing of the voir dire proceeding on the ground that the court, relying on its own recollection, would be serving as both a fact witness and trier of fact. In the second case, the defendant argued that the trial court improperly refused to recuse itself from a reconstruction hearing of the jury charge on the ground that because the "sole issue of the hearing pertained to the conduct of the Trial Judge, the Judge himself was a potential witness to be subjected to cross-examination, and . . . [defendant's] right to confrontation and a fair hearing required his recusal." Id. at 244. In rejecting both claims, the Court of Appeals held that: Here, the Judges served only to fulfill the proper judicial role of passing upon the accuracy of the records and proceedings before them . . . [T]he bias which defendants allege exists here that the Judges naturally wanted to avoid embarrassment and protect the criminal convictions falls decidedly short of the mark. . . . [T]here was no right to confront the Trial Judges as witnesses against the accused. . . . [H]ere the Trial Judges were not testifying as witnesses against the defendants, . . . but were instead laboring to elucidate what originally took place before them. . . . [A]s the final arbiter of the record the Trial Judge is not, in constitutional terms, a witness, but rather the official who certified to the appellate court, if he or she can, what originally took place below.

[*10]Id. at 245-48. See also Liteky v. United States, 510 U.S. 540, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994). Similarly here, any allegation that the Court is concerned with seeking to avoid embarrassment or protect the convictions is both baseless and insufficient to warrant recusal. Moreover, as the foreman's testimony was completely consistent with the record, not to mention the Court's own recollection, the possibility of prejudice or bias affecting the outcome pales.

C. Claim of Prosecutorial Misconduct.

Criminal Procedure Law § 330.30 (1) provides that a court may set aside a verdict upon "any ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal . . . of the judgement as a matter of law by an appellate court." In People v. Medina, 53 NY2d 951, 953 (1981), the Court of Appeals held that after "[t]he trial judge ultimately sustained defense counsel's objection . . . [Defendant] did not request any curative instruction or move for a mistrial on the basis of the remarks that were made before the Trial Judge's ruling. Hence, no error of law was preserved for appellate review." See also People v. Ortiz 217 AD2d 425 (1st Dept. 1995) ("Defendant's claim that the prosecutor's summation comment . . . [was] improper[] . . . is unpreserved for appellate review as a matter of law, since the trial court sustained defendant's objection thereto . . . and defendant requested no further curative relief nor a mistrial."), lv. denied, 86 NY2d 799 (1995).

Here, when defense counsel objected to the "know far less" summation statement complained of as improperly attempting to shift the burden of proof and use Defendants' constitutional right to be silent against them, the Court instructed the jury to disregard the statement. As no further relief was requested, this claim is unpreserved for appellate review and, therefore, cannot be the basis of a CPL § 330.30 motion to set aside the verdict. This includes Defendants' constitutional claims, as the failure to timely move for a mistrial waives a constitutional claim with respect to a prosecutor's summation. See People v. Murphy, 179 AD2d 559 (1st Dept. 1992), lv. denied, 79 NY2d 951 (1992); People v. Tufino, 162 AD2d 161 (1st Dept. 1990), lv. denied, 77 NY2d 844 (1991).

In any event, although this statement by the prosecutor was improper, it is well settled that an "isolated statement did not deprive defendant[s] of a fair trial." People v. McKinnie, 188 AD2d 274, 275 (1st Dept. 1992), lv. denied, 81 NY2d 889 (1993). See also People v. Galloway 54 NY2d 396 (1981); People v. Rudolph, 161 AD2d 115, 116 (1st Dept. 1990) (prosecutor did not demonstrate a "persistent course of conduct that was deliberate and reprehensible"), lv. denied, 76 NY2d 795 (1990). Moreover, "the court's charge which, inter alia, instructed the jurors that their recollection, understanding and evaluation of the evidence and not the statements of counsel were controlling was sufficient to dispel the effect of any alleged [misconduct]." People v. Torres, 160 AD2d 285 (1st Dept. 1990), lv. denied, 76 NY2d 744 (1990). Here, as the Court instructed the jury to disregard this improper comment, it is presumed that this instruction was followed.

D. Claim of Juror Coercion.

It has long been the public policy of our courts that "a juror cannot impeach his own verdict." McDonald v. Pless, 238 U.S. 264, 267, 35 S. Ct. 783, 784, 59 L. Ed. 1300, 1302 (1915). See also Clark v. United States, 289 U.S. 1, 53 S. Ct. 465, 77 L. Ed. 993 (1933); People v. De Lucia, 20 NY2d 275, 278 (1967); 8 John H. Wigmore, Evidence, § 2348 (McNaughton rev. ed. 1961). However, the High Court in McDonald, supra, at 268-69, 35 S. Ct. at 785, 59 L.Ed. at [*11]1302-03, noted that "it would not be safe to lay down an inflexible rule because there might be instances in which such testimony of the juror could not be excluded without violating the plainest principles of justice." Therefore, although "[g]enerally, a jury verdict may not be impeached by proof of the tenor of its deliberations, but it may be upon a showing of improper influence. . . . Improper influence, of course, embraces not merely corrupt attempts to affect the jury process, but even well-intentioned jury conduct which tends to put the jury in possession of evidence not introduced at trial." People v. Brown, 48 NY2d 388, 393 (1979). As further explained in De Lucia, supra, at 279, "[s]tatements concerning outside influence on a jury, . . . should be admissible to show that the defendant was prejudiced." Nevertheless: There are reasons of public policy, why jurors should not be heard to impeach their verdicts, whether by showing their mistakes or their misconduct. Neither can they properly be permitted to declare, with a view to affect their verdict, an intent different from that actually expressed by the verdict as rendered in open court. . . . This rule excludes affidavits to show mistake or error of the jurors in respect to the merits, or irregularity or misconduct, or that they mistook the effect of their verdict and intended something different.

Dalrymple v. Williams, 63 NY 361, 364 (1875). Here, the affidavit and testimony of the jury foreman does not rise to the level of jury coercion. The affidavit contained nothing regarding improper or outside influences, juror disqualification, a mistake in announcing the verdict or a fraud practiced upon the Court. Rather, the foreman merely seeks to impeach his own verdict, which is prohibited.

Nevertheless, were the Court to address the merits of Defendants' claim that either the foreman or the jury as a whole was coerced into finding them guilty, it is noted that belligerent conduct alone does not establish a coerced verdict. See People v. Gathers, 10 AD3d 537 (1st Dept. 2004), lv. denied, 3 NY3d 740 (2004). Indeed, in People v. Sampson, 201 AD2d 314 (1st Dept. 1994), lv. denied, 83 NY2d 971 (1994), the First Department, citing it prior opinion in People v. Redd, 164 AD2d 34, 37 (1st Dept. 1990), held that a "spirited dispute" between two jurors "represented no more than a manifestation of the heightened atmosphere in which the jury's decision-making process takes place.'" In Redd, supra, two of the jurors went to defense counsel's office after trial and detailed allegations of improprieties during jury deliberations in affidavits. The jurors then testified at a CPL § 330.30 hearing in which they "claimed that they had voted guilty' only because of intimidation and coercion by the foreman and other jurors . . . [and] they had been threatened by the foreman, who repeatedly shouted and screamed obscenities at those jurors who were voting not guilty, escalating to a threat to throw [one of the jurors] out the window. They further stated that many of the jurors rushed to a verdict . . . because they did not wish to be sequestered over the weekend." Redd, supra, at 35-36. Although reversed on other grounds, the Appellate Division held that when allegations do not concern outside or extraneous influences: [T]he claims are essentially complaints stemming from escalated tempers and of obscenities shouted by the foreman. . . . [T]he [*12]alleged threats and belligerent exchanges in the course of deliberations would . . . be insufficient to upset the verdict. . . . [T]he alleged comments made by other jurors . . . were not shown to have unfairly influenced or prejudiced the deliberative process. . . . The jurors were polled at the conclusion of the case and affirmed their decision, in open court, without reservation and with no juror giving any indication that the verdict was not freely his or her own. . . . [S]ince no reservations were in any way expressed by the disaffected jurors before the verdict was rendered, they cannot now be permitted to impugn the finality and integrity of the verdict by belated claims of alleged coercion by other members of the jury.

Redd, supra, at 37-38. See also People v. Horney 112 AD2d 841 (1st Dept. 1985), lv. denied, 66 NY2d 615 (1985); cf. People v. Lavender, 117 AD2d 253 (1st Dept. 1986). Here, the foreman testified that he was never physically assaulted or threatened. Rather, he only stated that he felt coerced due to a "vibe" in the jury room and that there were other jurors who agreed on the verdict solely so that they could go home. These occurrences are patently insufficient to establish that the verdict was the result of any type of coercion.

In any event, as explained in Sampson, supra, any claim that a juror merely acquiesced in the verdict is belied by the record when it "indicates that each juror confirmed the verdict as his or hers during a subsequent jury poll." Nevertheless, as noted in Brown, supra, at 394, any alleged misconduct in the jury room as alleged by the foreman was harmless because: [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."

To the extent that Defendants claim that the Court's actions coerced a verdict, as explained by the Court of Appeals in People v. Pagan, 45 NY2d 725, 726-27 (1978), "a trial court may properly discharge its responsibility to avoid mistrials by encouraging jurors to adhere to their oaths." See also People v. Aponte, 2 NY3d 304 (2004); People v. Vincent, 231 AD2d 444 (1st Dept. 1996), lv. denied, 89 NY2d 925 (1996), lv. denied, 89 NY2d 931 (1996); People v. Tucker, 192 AD2d 469 (1st Dept. 1993). Cf. United States v. Tateo, 377 U.S. 463, 84 S. Ct. 1587, 12 L. Ed. 2d 448 (1964); Matter of Randall v. Rothwax, 78 NY2d 494 (1991), cert. denied, sub nom., Matter of Morgenthau v. Randell, 503 U.S. 972, 112 S. Ct. 1588, 118 L. Ed. 2d 306 (1992); People v. Nunez, 256 AD2d 192 (1st Dept. 1998), lv. denied, 93 NY2d 975 (1999).

Here, not only was the given Allen (see Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 [1896]) charge (Tr. at 913-15), which originated in 1 CJI (NY) § § 420.07, 42.08, 42.60, pp. 983-85, 1019, completely proper (see People v. Russell, 179 AD2d 521, 523 [1st Dept. 1992] ["The court's Allen charge, which specifically instructed the jurors to continue deliberation only if they could do so without violating their consciences, was in no way coercive."]), lv. denied, 79 NY2d 952 (1992), but, in addition, during his colloquy with the [*13]Court, the foreman never indicated that the jury "was hopelessly deadlocked and the court's response did not serve to coerce a verdict" (People v. Young, 262 AD2d 8 [1st Dept. 1999]), and the Court engaged in no action that can be considered as coercive through innuendo or prodding. Moreover, any claim that the Court's actions were coercive is belied when reviewed in conjunction with the initial instruction, main jury charge, and the fact that Defendants were acquitted of the top charge. See People v. Batson, 219 AD2d 538 (1st Dept. 1995), lv. denied, 87 NY2d 844 (1995).

E. Claim of Foreman's Improper Marking of the Verdict Sheet

There is no basis, either statutorily or in case law, to support Defendant's contention that the Court was required to return the jury to the deliberating room in order for the foreman to simply make two marks indicating that Defendant Ochoa was "not guilty" of the second Robbery in the Second Degree and the Criminal Possession of a Weapon in the Fourth Degree counts. See CPL § 310.20 (2); People v. Piazza, 48 NY2d 151 (1979). Moreover, if any juror disagreed with the determination or found a mistake in the announced verdict, they would have stated so when polled. See Sampson, supra. In any event, as the two additional marks added by the foreman both indicated not guilty, any error was harmless. See Piazza, supra.

F. Claim of Ineffective Assistance of Counsel.

In People v. Benevento, 91 NY2d 708, 712-15 (1998), our Court of Appeals opined the state standard for ineffective assistance of counsel: The core of the inquiry is whether defendant received meaningful representation . . . the test being reasonable competence, not perfect representation. . . . It is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings. . . . Counsel's performance should be objectively evaluated . . . [t]o determine whether it was consistent with strategic decisions of a reasonably competent attorney. . . . As long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance. . . . We have . . . noted that a claim of ineffective assistance of counsel will be sustained only when it is shown that counsel partook an inexplicably prejudicial course.

See generally People v. Stultz, 2 NY3d 277 (2004); People v. Baldi, 54 NY2d 137 (1981).

Here, based on the totality of the representation from Messrs. Weiss, Mechanic, Silveri and Segal, including the fact that Defendants were found not guilty of the top counts, it is clear that they were not so deficient so as to deny Defendants meaningful representation. Indeed, the record indicates that counsels effectively argued for Defendants. This includes filing pre-trial Omnibus motions, which were successful in obtaining pre-trial hearings, and, at those hearings, as well as during trial, counsels not only conducted lengthy cross-examinations of the People's witnesses, in which they made effective use of the witnesses Grand Jury testimony (see People v. Espinal, 220 AD2d 276 [1st Dept. 1995], lv. denied, 87 NY2d 900 [1995]), but also made numerous objections, many of which were sustained. Likewise, counsels also delivered cogent opening statements and summations. Furthermore, counsels argued enthusiastically and [*14]persuasively on their clients' behalf at all of the pre- and post-trial hearings as well as at the trial itself. Thus, under the totality of the circumstances, it can hardly be said that defense counsel did not provide meaningful representation.

Moreover, to the extent that they are true, this Court is aware of no case is support of Defendants' contention that an attorney upset about his commute, handling more than one case at a time, or not communicating with his supervisor is somehow tantamount to per se ineffectiveness. In addition, Defendants do not specify: what their attorneys should have further investigated; what a further investigation would have revealed; how they would have benefitted from a further investigation; how often their attorneys conferred with them; how they would have benefitted from further communications with their attorneys; what more their attorneys should have done in the proceedings; how their attorneys failed to afford them a sufficient opportunity to participate in the trial; how they would have benefitted by participating more in the trial; and what documents were allegedly concealed by their attorneys. It is also noted that, as Defendants went to trial and received meaningful representation, the claim that counsel tried to coerce them to plead guilty is moot.

Furthermore, Defendants' claims that their attorneys were ineffective for failing to call certain witnesses or send an investigator to the crime scene are meritless as their claim was unsubstantiated due to the lack of any affidavits from the uncalled witnesses. See People v. Rosario, 309 AD3d 537 (1st Dept. 2003), lv. denied, 1 NY3d 579 (2003). See also People v. Green, 14 AD3d 422 (1st Dept. 2005) ("There is nothing in the record to suggest that counsel should have called an alibi witness, or any other witness."), lv. denied, 4 NY3d 886 (2005); People v. Del Campo, 281 AD2d 279, 280 (1st Dept. 2001) (" Counsel may not be expected to create a defense where it does not exist.'"), lv. denied, 97 NY2d 640 (2001), citing, People v. DeFreitas, 213 AD2d 96, 101 (2nd Dept. 1985), lv. denied, 86 NY2d 872 (1995). Therefore, "there is no showing, other than speculation, that if counsel had held further interviews . . . [or] hired or sought the appointment of an investigator, that this could have had any effect on the outcome of the trial." People v. Spencer, 226 AD2d 160, 161 (1st Dept. 1996), lv. denied, 88 NY2d 992 (1996), lv. denied, 88 NY2d 995 (1996).

As per counsel's actions regarding the prosecutor's summation, counsel properly made an objection which was sustained, and pursuant to the Court's instructions, the jury was instructed not to consider her statement. To the extent that Defendants claim that counsel should have moved for a mistrial, since such a motion would have been denied, counsel's decision not to raise a meritless motion cannot constitute ineffectiveness. See People v. Mangum, 12 AD3d 207 (1st Dept. 2004), lv. denied, 4 NY3d 765 (2005), lv. denied, 4 NY3d 767 (2005).

Regarding the CPL § 330.30 motion and hearing, although the Court was displeased with some of counsel's actions, there was nothing that reached the level of ineffectiveness as, in the end: the foreman was contacted, filed an affidavit and testified at the hearing; a motion was made to have the Court recuse itself, and more than enough moving papers were filed regarding every claim raised.

It is also noted that although the Court assigned new counsel to Defendant Figueroa based, in part, upon his complaint filed with the Disciplinary Committee, the Court was not required to do so as such an action by a defendant does not necessarily create a conflicted or ineffective assistance of counsel claim. Indeed, as explained by the First Department in People v. [*15]Walton, 14 AD3d 419, 420 (1st Dept. 2005), lv. denied, 5 NY3d 796 (2005), "[w]hen defendant filed meritless complaints to the Departmental Disciplinary Committee . . . against assigned counsel, any conflict was of defendant's own making and he was not entitled to circumvent the good cause requirement by creating an artificial conflict." See also People v. Linares, 2 NY3d 507 (2004); People v. Saxon, AD3d , 2005 WL 3214867 (1st Dept. December 1, 2005); People v. Felder, 17 AD3d 126 (1st Dept. 2005), lv. denied, 5 NY3d 788 (2005).

Moreover, to the extent that Defendants raise a Federal ineffective assistance of counsel claim pursuant to Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), as explained in People v. Caban, 5 NY3d 143, 156 (2005), "[b]ecause our state standard . . . offers greater protection than the federal test, we necessarily reject defendant's federal constitutional challenge by determining that [they were] not denied meaningful representation under the State Constitution." Compare, Henry v. Poole, 409 F.3d 48 (2nd Cir. 2005).

G. Claim of Violation of CPL § 310.30 and Defendants' Right to be Present at every Material Stage.

Although no federal constitutional issue has been raised (see United States v. Gagnon, 470 U.S. 522, 105 S. Ct. 1482, 84 L. Ed. 2d 486 [1985]; Rushen v. Spain, 464 U.S. 114, 125-26, 104 S. Ct. 453, 459, 78 L. Ed. 2d 267, 277 [1983] [Stevens, J., concurring] ["The mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any constitutional right. The defense has no constitutional right to be present at every interaction between a judge and a juror, nor is there a constitutional right to have a court reporter transcribe every such communication."]), it is well settled pursuant to state law that "a defendant has the right to be present during all critical stages of a trial and . . . this includes the right to be present when the jury is given instruction or information by the court." People v. Bonaparte, 78 NY2d 26, 30 (1991). This principle has been codified by the state legislature in two sections of the Criminal Procedure Law. CPL § 260.20 states, in pertinent part, that "[a] defendant must be personally present during the trial of an indictment," and it is well settled that this right "extends to all material stages of the trial, including ancillary proceedings in which defendants' presence could have a a substantial effect on their ability to defend against the charges.'" People v. Velasquez, 1 NY3d 44, 47-48 (2003), citing, People v. Sloan, 79 NY2d 386, 392 (1992). See also People v. Rodriguez, 85 NY2d 586, 591 (1995) ("defendant's presence is not required where the proceeding at issue involves only questions of law or procedure . . . [or a] purely legal discussion"). Similarly, CPL § 310.30 provides that: At any time during its deliberation, the jury may request the court for further instruction or information with respect to the law, with respect to the content or substance of any trial evidence, or with respect to any other matter pertinent to the jury's consideration of the case. Upon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper.



[*16]"CPL § 310.30 thus imposes two separate duties on the court following a substantive jury inquiry: the duty to notify counsel and the duty to respond." People v. O'Rama, 78 NY2d 270, 276 (1991), citing, People v. Malloy, 55 NY2d 296, 301 (1982), cert. denied, sub nom., Malloy v. New York, 459 U.S. 847, 103 S. Ct. 104, 74 L. Ed. 2d 93 (1982). In addition, in multiple defendant cases, "the fact that [a] juror's . . . reservations may or may not have been limited to [a] codefendant . . . is irrelevant." People v. Cain, 76 NY2d 119, 124 (1990).

Before addressing whether these statutes were violated, it must first be determined whether Defendants' claim were preserved, not waived, and if those doctrines are even applicable. "Waiver and preservation are separate concepts . . . although they are often inextricably interwined.'" People v. Ahmed, 66 NY2d 307, 311 (1985), quoting, People v. Michael, 48 NY2d 1, 5, n. 1 (1979). "Preservation concerns whether an issue had been properly brought to the attention of the Trial Judge and opposing attorneys." People v. Prescott, 66 NY2d 216, 219, n. 1 (1985), cert. denied, sub nom., Prescott v. New York, 475 U.S. 1150, 106 S. Ct. 1804, 90 L. Ed. 2d 349 (1986), citing, People v. Thomas, 53 NY2d 338, 342, n. 2 (1981). On the other hand, "[a] waiver is . . . an intentional relinquishment or abandonment of a known right or privilege" (Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 2d 1461, 1466 [1938]), and "[w]ith respect to statutory rights, as contrasted to constitutional rights, this Court has been more flexible regarding the acceptable form of voluntary waivers." People v. Vargas, 88 NY2d 363, 376 (1996).

However, preservation and waiver do not apply to " error that would effect the organization of the court or the mode of proceedings prescribed by law,'" (People v. Gray, 86 NY2d 10, 21 [1995], quoting, People v. Patterson, 39 NY2d 288, 295 [1976], aff'd, sub nom., Paterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 [1977]), because "so-call mode of proceedings errors . . . go to the essential validity of the process and are so fundamental that the entire trial is irreparably tainted." People v. Kelly, 5 NY3d 116, 119-20 (2005).

In dealing with the convergence of the doctrines of preservation, waiver, and mode of proceedings prescribed by law, regarding CPL § 260.20, it is well settled that "[a]lthough the right to be present . . . need not be preserved . . . [and] the right is fundamental, it may be waived." People v. Velasquez, 1 NY3d 44, 47-48 (2003). Indeed, in People v. Mosely, 200 AD2d 430, 431 (1st Dept. 1994), lv. denied, 83 NY2d 856 (1994), a case in which a deliberating juror contacted the court and indicated his discomfort with continued participation, the defense counsel stated that the court's inquiry of the juror should take place in defendant's absence, and as a result, the First Department held that "[t]his explicit waiver of defendant's presence . . . waived the claim from review." Cf. People v. Carr, 168 AD2d 213 (1st Dept. 1990).

As per CPL § 310.30, however, as recently explained by the Court of Appeals in People v. Collins, 99 NY2d 14, 17-19 (2002): Failure to comply with the mandates of CPL § 310.30 . . . affects the mode of proceedings prescribed by law. . . . Thus, even where a defendant fails to object to such substantive irregularities in instructing the jury, an issue of law is presented for our review. . . . Not every communication, however, requires that the jury be recalled or that defendant be present. Where a communication is "ministerial . . . [and] wholly unrelated to the substantive legal or [*17]factual issues of the trial," the defendant's presence is not required (People v. Harris, 76 NY2d 810, 812 [1990]).

Here, upon receipt of the note from the foreperson, the Court conducted a colloquy in order to clarify its meaning. Immediately thereafter, the Court informed the parties as to what occurred and it was at this point that the Court sought input from the parties. Rather than seeking any further instructions or voicing any objection as to what occurred, defense counsel did neither, but instead, stated "I have no problem." By not seeking any further relief or to have the foreperson recalled in their presence in order to remedy any alleged defect at that curable moment, if the doctrines of preservation and waiver are applicable, they would bar any claim now raised by Defendants. Therefore, as the doctrine of waiver, as opposed to preservation, applies to Defendant's right to be present pursuant to CPL § 260.20, that portion of his claim is deemed to be waived. However, as to Defendant's right to be present pursuant to CPL § 310.30, whether preservation and waiver apply to that claim is moot as they apply only if the colloquy is determined to be ministerial, and thus, permissible as it would not affect the mode of proceedings prescribed by law.[FN4]

It is well settled that a communication is ministerial and does not require a defendant's presence where it "[does] not attempt to convey any legal instructions to the jury or to instruct them as to their duties and obligation upon sequestration or otherwise . . . [nor] deliver any instructions to the jury concerning the mode or subject of their deliberations." Bonaparte, supra, at 30-31. In People v. Hameed, 88 NY2d 232, 240-41 (1996), cert. denied, sub nom., Hameed v. New York, 519 U.S. 1065, 117 S. Ct. 704, 136 L. Ed. 2d 625 (1997), a trial court informed the parties that: [it inquired] of a juror who had reflected discontent. . . . "He has been advised that . . . [t]here is nothing we can do about it." Neither defendant objected to this information at this point and in this form. Counsel for defendant . . . however, asked the court to instruct the entire jury. . . . In response, the Trial Justice attempted to clarify what exactly he had done earlier in this regard: "I have already instructed them with respect to that. It has already been done" in that "I had the forelady of the Jury up in my chambers." The Justice added that the discussion had happened "a few moments ago and we went over the entire area, all those areas." Defense counsel objected to the court having held this unrecorded, ex parte discussion with only the jury foreperson. Although no [*18]stenographic record of the trial court's meeting with the foreperson was made, the cited portions of the colloquy with counsel demonstrate that the statements the defendant[] now claim amounted to an "instruction" may properly be characterized as merely ministerial features of the sequestration requirements. . . . [N]o discernible prejudicial error is evident from the handling of these essentially ministerial matters, wholly unrelated to the substantive resolution of the case. The dispositive inquiry ultimately focuses on whether the matter discussed was merely ministerial . . . and, thus, "wholly unrelated to the substantive legal or factual issues of the trial" (Harris, supra, at 812). We are satisfied . . . that the challenged discussion . . . bore no substantial relationship to the defendant's opportunity to defend against the charges.

Likewise, in People v. Lykes, 81 NY2d 767, 768-70 (1993): During deliberations, the Trial Judge received a note from the jury stating, "Legal Terminology about Charges brought against defendant on all three accounts." Without notifying defendant, defense counsel or the prosecutor, the Judge sent a note to the jury asking: "Do you wish the legal definition of each crime charged? or Do you wish the elements repeated? or Something else?" The jury responded with a note stating "We wish the legal definition of each crime charged." The notes exchanged between the Judge and the jury were then marked as court exhibits and the jury was brought back into the courtroom. In the presence of defendant and counsel, the Judge read the last note into the record and proceeded to charge the jury with respect to the legal definitions of the crimes charged. Defendant took no exception to the charge itself or the procedure employed by the court. . . . [T]he clarification sought by the Trial Judge without prior notification to counsel did not constitute reversible error. . . . CPL § 310.30 does not require notice to defendant in every instance of communication from the jury to the court. . . . [D]efendant and counsel were clearly afforded meaningful notice of the jury's request prior to the time the Judge gave the jury any information or instruction. The Judge's initial note was simply a request for clarification as to what the jury wanted. It conveyed no information pertaining to the law or facts of the case, and did not limit or channel the jury's question, explicitly leaving open the possibility that the jury wanted "something else." It did not purport to be a response contemplated and governed by the statute. Defendant counsel had an opportunity to participate after the clarification was received from the jury and before the court gave the reinstruction as to the legal definitions of [*19]the crimes charged. We therefore conclude that, in the circumstances presented, . . . CPL § 310.30 [was] not violated.

See also Kelly, supra, at 144 (communication ministerial if it does not "impart any information to the jurors about the trial evidence"); Harris, supra, at 812 ("[C]ourt's communication with the jury in defendant's absence consisted solely of a question to clarify whether a readback request for testimony about complainant was a request for testimony of the victim complainant. The jury was given no information of instruction within the meaning of CPL § 310.30. Moreover, this ministerial communication was wholly unrelated to the substantive legal or factual issues of the trial."); People v. Bowen, 309 AD2d 600, 601 (1st Dept. 2003) ("communication . . . regarding procedures for disposal of the jury's confidential notes concerning their deliberations . . . [was] a purely administrative or ministerial matter that had nothing to do with any legal or factual issue or the mode of jury deliberations"), lv. denied, 1 NY3d 568 (2003); People v. Mosely, 200 AD2d 430, 431 (1st Dept. 1994) (questioning of juror, who "contacted the court and indicated his discomfort with continued participation and that he was uneasy with people and was not a good communicator, . . . [did not] amount to elaborate instructions exhorting the juror to return to deliberations or expound on legal principles"), lv. denied, 83 NY2d 856 (1994); People v. Bennett, 189 AD2d 706 (1st Dept. 1993) ("[Court's] exchange with the foreperson, who indicated that a verdict could be rendered if the jury were to briefly resume deliberations, was not error, involving as it did only a ministerial matter that had no substantive impact on deliberations, and did not prevent defense counsel from participating meaningfully."), lv. denied, 81 NY2d 967 (1993); People v. Perez, 173 AD2d 162, 164 (1st Dept. 1991) ("questioning of the jury foreman outside of defendant's presence regarding clarification as to which witness's testimony the jury wished to have read back was not a violation of . . . CPL § 310.30"), lv. denied, 78 NY2d 925 (1991), lv. denied, 78 NY2d 926 (1991).

Indeed, the ministerial exception to CPL § 310.30 has been partially codified in CPL § 310.10 (1) which provides that court personnel may not communicate with deliberating jurors "[e]xcept when so authorized by the court or when performing administerial duties" (emphasis added). Moreover, in Malloy, supra, a case in which the jury sent the court a note requesting the testimony of three detectives, the court, prior to consulting with the parties, asked the jury to consider making the request for testimony more specific. In affirming this practice, not only did the Court of Appeals hold that for the court to respond meaningfully to a jury note, one of the factors to consider is whether the note "may have to be clarified before it can be answered" (Malloy, supra, at 302), but it also held that "the better practice" is "to inquire of the jury what was unclear to them." Malloy, supra, at 303. See also People v. Almodovar, 62 NY2d 126 (1984) (court did not err when, after receiving jury note asking for the legal definitions, the Judge requested that the jury clarify their question prior to summoning counsel and soliciting requests or comments from them); People v. Gonzalez, 293 NY 259, 261 (1944) (where jury note is unintelligible or not of the utmost possible clarity, it is "the court's duty to ask the questioners to make their inquiry clearer").

By way of contrast, in O'Rama, supra, after receiving a note from the jury, the trial court declined to disclose its contents, but rather, summarized the note. The trial court then responded "with a substantive Allen instruction that was, unquestionably, intended to have an effect on the [*20]deliberative process, . . . [and thus] a significant departure from the organization of the court or the mode of proceedings prescribed by law' (People v Coons, 75 NY2d 796, 797 [1990], quoting, Patterson, supra, at 295)." O'Rama, supra, at 279-80. See also Cain, supra; People v. DeRosario, 81 NY2d 801 (1993); People v. Torres, 72 NY2d 1007 (1988); Ciaccio, supra; People v. Lee, 192 AD2d 308 (1st Dept. 1993); People v. Taylor, 192 AD2d 35 (1st Dept. 1993), lv. denied, 82 NY2d 708 (1993); People v. Carr, 168 AD2d 213 (1st Dept. 1990); People v. Torres, 158 AD2d 62 (1st Dept. 1990); People v. Kisoon, AD3d , 801 N.Y.S.2d 69 (2nd Dept. Sept. 12, 2005).

In the case at bar, upon receipt of the foreman's note, the Court sought solely to clarify its meaning. It is noted that had the foreman clarified the meaning of his note so as to indicate that the verdict was not unanimous, the Court would have immediately ceased its contact with him and informed the parties as to what occurred so as to consult with them prior to delivering any further instruction. In any event, regardless of what the foreman intended to state, the communication between him and the Court was solely about the process by which the verdict was going to be recorded. Specifically, he was informed that, as the foreman, he would be asked whether a particular defendant was guilty or not guilty of a given charge and then, if polled, he would have to indicate if the verdict was, in fact, his verdict. He was also informed that he would not have to explain the verdict. At no time was anything substantive conveyed or exhorted, including anything resembling supplemental instructions, information pertaining to the law or facts of the case, any type of Allen (supra) charge, or the subject or mode of the jury deliberations. Rather, this innocuous communication amounted to no more than a ministerial function of clarifying what would occur when the jury returned to the courtroom. As such, the colloquy did not go to the mode or proceedings prescribed by law, and thus, did not irreparably taint the entire trial. Furthermore, as this communication was solely about the procedure of announcing the verdict, Defendant had no right to be present as his presence would have had no effect on his ability to defend himself, he could have done nothing nor gained anything by being present and, in any event, did not object to the occurrence of this proceeding in his absence when the court invited him to make such an objection. Moreover, by disclosing the note, as well as the substance of the colloquy immediately thereafter, and before the verdict was rendered or the jury further instructed, Defendants were afforded an opportunity to object or seek some other type of corrective measure. Instead, Defendants acquiesced and consented to the Court's treatment of the matter. Additionally, as Defendants' current motion to set aside the verdict was submitted after the situation was cured in a manner Defendants obviously found satisfactory, to treat Defendants claim as not waived would be tantamount to allowing them to "eat [their] cake and hav[e] it too." People v. Tarsia, 50 NY2d 1, 9 (1980).

It is also noted that Defendants' reliance on Mr. Garcia's statement that "[t]he attorneys could have explained to me if they were in the room, that my verdict had to be my own, tried and true, and that if we could not agree there is nothing morally wrong with a hung jury" is misplaced because in providing supplemental instructions to the jury, whether material or ministerial, the attorneys are not allowed to provide them nor to speak directly to the jurors. Rather, it is the Court that is charged with this function. In addition, in light of Mr. Garcia's testimony at the hearing that he was already aware of the above information regarding having to unanimously agree to the verdict and being allowed to be hung, the Court fails to understand how having this [*21]information repeated to him would have assisted him if he already knew it to be true. Furthermore, although this Court finds Defendant's testimony regarding the events in the robing room to be credible, and consistent with the Court's own recollection as well as the record, his testimony regarding the events after the trial appears incredible, self-contradictory and nonsensical. This includes his two different versions as to how he came into contact with defense counsel as well as his claiming that he chose the word to use in the affidavit after repeatedly acknowledging that the attorney chose every specific phrase that was brought to his attention. These problems with the foreman's affidavit and testimony is the very embodiment of the type of "self-stultification" Lord Mansfield warned against. Vaise v. Delaval, 1 Term Rep. 11, 99 Eng. Rep. 944 (K.B. 1785).

Lastly, regarding Mr. Garcia's testimony that he delayed in responding when polled to demonstrate that he did not agree with the verdict, such a circumstance was handled by the First Department in People v. Mercado, 230 AD2d 488 (1st Dept. 1997), aff'd, 91 NY2d 960 (1998), which held that the trial court complied with CPL § 310.80 and the defendant was not deprived of his right to a unanimous jury verdict because the "juror [at issue] did not at any time make a negative declaration in response to the court's question as to whether the stated verdict was hers. Although she initially failed to respond to the court's inquiry, she later answered "yes" unequivocally. . . . Based on the juror's affirmative response during polling, together with the announcement by the foreperson that a unanimous verdict had been reached, we find no basis to conclude that the verdict was less than unanimous." Mercado, supra, at 490-92. Similarly here, although the foreman may have paused when polled, he later answered "yes" unequivocally and previously indicated that a unanimous verdict had been reached.

H. Claim of Lack of Legally Sufficient Evidence.

Initially, Defendants' "claim challenging the sufficiency of the evidence of physical injury' . . . is unpreserved for . . . failure to make an appropriate objection or motion specifically directed' at the alleged insufficiency." People v. Evans, 227 AD2d 121 (1st Dept. 1996), lv. denied, 88 NY2d 935 (1996). Therefore, it cannot be the basis of a CPL § 330.30 motion. In any event, even if the Court were to consider this claim, it would find it to be meritless. Penal Law § 10.00 (9) defines physical injury as "impairment of physical condition or substantial pain." Whether physical injury "has been proved is generally a question for the trier of fact . . . who in reaching his or its conclusion can consider, among other factors, the subjective reaction of the person claimed to have been assaulted." Matter of Philip A., 49 NY2d 198, 200 (1980). See also People v. Guidice, 83 NY2d 630 (1994); People v. James, 303 AD2d 240 (1st Dept. 2003), lv. denied, 100 NY2d 539 (2003); People v. Evans, 250 AD2d 484 (1st Dept. 1998), lv. denied, 92 NY2d 924 (1998). In the present case, as a result of Defendants' attack, Mr. Cruz suffered the aforementioned injuries, which was clearly sufficient to establish that he suffered physical injury.

I. Claim of Perjury.

As explained by the First Department in People v. Kitchen, 162 AD2d 178, 178-79 (1st Dept. 1990), lv. denied, 76 NY2d 941 (1990): [D]efendant lodges only a conclusory argument . . . in support of the claim that the People introduced perjurious testimony at trial, because of . . . inconsistent Grand Jury testimony. The fact of an inconsistency alone does not warrant such a conclusion, especially [*22]when the inconsistency is brought to the attention of the [jury].

See also People v. Fisher, 244 AD2d 191 (1st Dept. 1997), lv. denied, 91 NY2d 891 (1998). Similarly here, although Defendants elicited numerous inconsistencies in Mr. Cruz's testimony, including inconsistencies with his Grand Jury testimony and regarding his testimony that Defendant Ochoa struck him on the back, Defendants have failed to establish that he committed perjury.

J. Claim of Brady Violation.

Initially, Defendants have failed to establish that a videotape of the incident, staff from 866 Hunts Point Avenue who witnessed the incident, or any additional information about Ms. Ruballo exculpating Defendant Ochoa even exists. See People v. Rosario, 309 AD2d 537, 538 (1st Dept. 2003), lv. denied, 1 NY3d 579 (2003) (claim regarding additional and possible alibi witnesses is unsubstantiated where defendant "did not include affidavits from trial counsel or from any of the uncalled witnesses"). In any event, in alleging a Brady, (supra), violation, a defendant must establish a reasonable possibility that the failure to disclose a certain document contributed to the verdict (see People v. Vilardi, 76 NY2d 67 [1990]; People v. Carter, 258 AD2d 409 [1st Dept. 1999], lv. denied, 94 NY2d 798 [1999]). As this showing has not been made, this claim must be rejected.

K. Claim that there is Newly Discovered Evidence.

CPL § 330.30 (3) states that the court may set aside the verdict on the ground that "new evidence has been discovered since the trial which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant." In People v. Wainwright, 285 AD2d 358, 360 (1st Dept. 2001), the First Department, citing People v. Salemi, 309 NY 208, 215-16 (1955), cert. denied, sub nom., Salemi v. New York, 350 U.S. 950, 76 S. Ct. 325, 100 L. Ed. 827 (1956), noted that: To set aside a verdict it must be proven by defendant that there is newly discovered evidence: (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and, (6) which does not merely impeach or contradict the record evidence.

As most recently explained in People v. Machicote, AD3d , 804 N.Y.S.2d 76, 78 (1st Dept. November 17, 2005), the First Department rejected a claim of newly discovered evidence since the alleged evidence "purported, at most, to impeach an eyewitness. . . . Accordingly, there was no probability that this evidence would have affected the verdict." Similarly here, not only have Defendants failed to establish that the alleged newly discovered evidence would have possibly, let alone probably affected the verdict, but they have failed to establish that such evidence even exists.

Conclusion

ORDERED, that the motion by Defendants is denied.

The foregoing constitutes the decision and opinion of the Court. [*23]

Dated: Bronx, New York

December 16, 2005

DOMINIC R. MASSARO,

Justice of the Supreme Court Footnotes

Footnote 1:Defendants continued to file pro se motions despite the Court repeatedly advising, in response to their complaints about the delay between announcing of the verdict and the determining any given motion, that each time a motion is filed, it serves to delay the proceeding because the People must be allowed an opportunity to respond. The Court further informed Defendants that although they were free to file as many motions as they desire, such motions were responsible for the majority of the delay about which they complain.

Footnote 2:Although Defendant Ochoa's initial attorney repeatedly stated that he would be filing motions papers on his client's behalf, none were submitted. Moreover, Defendant Ochoa informed the Court that this attorney failed to respond to the last eight letters he sent to him on a weekly basis. This, as well as counsel's failure to appear on several dates, caused the Court to inform this attorney that it was disturbed by the lack of "civility of counsel" in dealing with his client, which, it noted, was separate and apart from any allegation of ineffectiveness. Ultimately, this attorney was replaced.

Footnote 3:The other types of motions filed included both Defendants filing complaints against their trial attorneys with the Disciplinary Committee. The Ninth Judicial District declined to investigate Defendant Figueroa's complaint as it related to procedural issues at trial rather than matters of professional misconduct. Defendant Ochoa's complaint has yet to be decided. Defendant Figueroa also filed a motion for new counsel, which was was granted in conjunction with the attorney's motion to be relieved. In addition, Defendant Ochoa filed a pro se petition for a CPLR Article 78 Writ of Prohibition and an Order to Show Cause, which was considered as a petition for a CPLR Article 70 Writ of Habeas Corpus. Both sought release from custody on the same grounds as those raised in his various CPL § 330.30 motions. The petition for a CPLR Article 78 Writ of Prohibition was denied by the First Department while the petition for a CPLR Article 70 Writ of Habeas Corpus was never granted. Moreover, Defendant Ochoa sought to have the Court appoint a private investigator on his behalf. However, this motion was baseless because, at the time, he was represented by the Legal Aid Society, which employs several such investigators. Furthermore, Defendant Ochoa filed letters with the Court, in which he indicated that, although he was innocent, he would plead guilty in exchange for a sentence of time served. Lastly, Defendant Ochoa filed letters with the Administrative Judge of Bronx County, the Deputy Administrative Judge of the New York City Courts, and the Chief Judge of the State, to investigate his case. After a communique with the Court, the Administrative Judge informed Defendant Ochoa that: his numerous motions have caused the delay in his sentencing; a hearing is scheduled regarding his motions; Defendant should contact his attorney; and the Administrative Judge has no appellate power to review the case.

Footnote 4:Aside from determining whether the colloquy at issue in this case was ministerial, the Court is aware that in O'Rama, supra, at 277-78, the Court of Appeals held that the procedure outlined in United States v. Ronder, 639 F.2d 931, 934 (2nd Cir. 1981), and People v. Miller, 163 AD2d 491 (2nd Dept. 1990), should be followed and although this procedure was not followed in the case at bar, and the Court has since modified its handling of jury notes to comply with this recommendation, this alone does not warrant reversal of Defendants' convictions as the procedure is based on the premise that the jury communication is "substantive" as opposed to "ministerial."