People v Amitrano

[*1] People v Amitrano 2006 NY Slip Op 51624(U) [12 Misc 3d 1198(A)] Decided on July 7, 2006 Supreme Court, New York County Hayes, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2006
Supreme Court, New York County

The People of the State of New York

against

Anthony Amitrano, Nenad Jurlina and Matthew Sanchez, Defendants.



23/2005



Robert Morgenthau, Esq., District Attorney, New York County, New York City (ADA Joan Illuzzi-Orbon, of counsel) for the People.

James Culleton, Esq., for defendant Anthony Amitrano; George Santangelo, for defendant Nenad Jurlina; Leslie Nizin, Esq. and Nathan Z. Dershowitz, Esq. for defendant Matthew Sanchez.

Roger S. Hayes, J.

INTRODUCTION

Defendants jointly move for a hearing to determine if the jury's verdict should be set aside pursuant to CPL 330.30 on the basis of a) newly discovered evidence (CPL 330.30[3]) and b) juror misconduct (CPL 330.30[2]). They also request a subpoena to be "so ordered" by the Court to the "New York Police Department, Medical Division, for the production at the hearing of Herbert Griffin's complete medical file," and that Herbert Griffin "identify all of his health care providers over the past ten years; the pharmacy or pharmacies at which he had his

prescriptions filled and his medical insurance carrier."

Defendant Amitrano moves separately to vacate his conviction on the additional ground that the evidence at trial was legally insufficient (see CPL 330.30[1]). [*2]

PRIOR PROCEEDINGS

The defendants were indicted for Gang Assault in the First Degree and Gang Assault in the Second Degree in connection with an attack on Herbert Griffin ("Griffin") and Attempted Gang Assault in the First Degree and Attempted Gang Assault in the Second Degree in connection with an attack on Liam McCormack ("McCormack"). After a three-week trial, Amitrano was acquitted of all charges relating to the attack on Griffin and found guilty of Assault in the Third Degree relating to the attack on McCormack. He is at liberty, awaiting sentence. Jurlina and Sanchez were found not guilty of Gang Assault in the First Degree and were convicted of Gang Assault in the Second Degree relating to the attack on Griffin. Pursuant to the Court's instructions, the jury did not consider the charges relating to McCormack as to Jurlina and Sanchez once it found them guilty of Gang Assault relating to Griffin. Jurlina and Sanchez are incarcerated, awaiting sentence.

THE EVIDENCE AT TRIAL

In the early morning hours of January 1, 2005, defendants were patrons in a bar located on Second Avenue between 87th and 88th Street in Manhattan. Amitrano and Sanchez were good friends. Both were acquaintances of Jurlina. McCormack was one of the bar's owners. At about closing time 4:00 A.M. Sanchez wanted to leave the bar with a drink. McCormack was at the door, with the keys in the lock so patrons could leave but new customers could not enter. He refused to let Sanchez take the drink outside. After some discussion, Sanchez surrendered his drink. When McCormack was distracted, defendants left the bar together, and Sanchez stole the keys. After a moment, McCormack realized the keys were missing and stepped outside the bar and asked if anyone saw who took his keys. A panhandler who had observed Sanchez take the keys pointed to defendants who were walking down Second Avenue and told McCormack they took the keys.

McCormack caught up to the defendants just south of 86th Street, and confronted Sanchez about the keys. Sanchez hit McCormack in the head with the keys and McCormack then punched him in the face, cutting Sanchez's lip. McCormack recovered his keys.

Griffin, a New York Police Department detective assigned to the 19th precinct, had been working in uniform on New Year's Eve. He returned to his precinct about 3:00 A.M., changed into civilian clothes and placed his gun in his locker. He was scheduled to work at about 8:00 A.M. that morning and wanted to get something to eat. Unarmed, he drove to the pub owned by McCormack, with whom he was friendly. He went inside, said hello to McCormack and McCormack's wife, Nehama, drank a Guinness and ate a meatball. After a few minutes, Nehama told him that McCormack had left the bar. Nehama asked him to make sure her husband was okay. He went outside and saw McCormack going down Second Avenue, about a block or block and a half south of him. He called to McCormack who yelled to him that the defendants took his keys. Griffin caught up to McCormack and the defendants and saw some sort of struggle south of 86th Street. He did not see it clearly because his view was partially blocked by a bus shelter. He told McCormack, in substance, "you got the keys lets get the fuck out of here." He and McCormack started to leave and were crossing Second Avenue and going north when a bottle was thrown at them from the defendants' direction. This caused Griffin and McCormack to briefly stop. They then walked just north of 86th Street on Second Avenue. At that time, Amitrano called to Griffin and said that Griffin's friend had assaulted his friend and said that we want the police. At almost the same time, Sanchez and Jurlina approached Griffin. Jurlina said, [*3]"how about we fuck you up." Griffin identified himself as a police officer and showed his badge. Sanchez replied, in substance, "that's great you've got a shield my father has a shield, everyone has got one."[FN1]

Almost as he said this, Sanchez punched Griffin in the face two times, knocking him to the ground. Simultaneously, as Griffin fell to the ground, Jurlina stomped Griffin in the head. Griffin was left on the sidewalk, his upper body slumped against a building wall. He had blood coming out of his left ear. At just about the same moment that Griffin was attacked by Jurlina and Sanchez, McCormack was attacked by Amitrano. McCormack suffered physical injury, though indisputably much less serious than Griffin's. By coincidence, a police van with uniformed police officers inside was passing by and stopped. Sanchez and Jurlina were arrested. Amitrano protested the arrest of Sanchez and Jurlina and was arrested later, for disorderly conduct essentially for interfering with the uniformed officers at the scene. Subsequently, at the 19th precinct he was identified by McCormack as one of the assailants and was also charged with crimes related to the attacks on both McCormack and Griffin.

McCormack and Griffin testified for the People, as did numerous other witnesses.

Each defendant also testified at length and the defense called many witnesses. Amitrano denied responsibility for any assault, although he admitted he was present at the scene. Jurlina and Sanchez each claimed justification, Jurlina as to the attack on Griffin and Sanchez as to the attack on McCormack. Jurlina testified Griffin initiated physical contact with him. Sanchez denied involvement with Griffin, and said he was involved with McCormack, who he claimed attacked him, not only south of 86th Street, but again north of 86th Street.

Griffin testified on February 6, 2006 and February 9, 2006. (There was no testimony on February 7 or February 8 because of an ill juror). He entered the courtroom from a side entrance, close to the witness stand and walked with a limp. During his testimony, he dropped his chin to his chest on occasion, and also from time to time held his left arm somewhat rigidly at his side. He was an extremely articulate witness on both direct and cross-examination. He said he had a good memory regarding the incident and the role each defendant played. He testified Jurlina kicked him in the head, a fact confirmed by Jurlina during his testimony. Griffin said he had little memory of events after he was kicked in the head. He detailed his injuries, treatment and present impairments including that he lost much of his ability to acquire new memories and that he was forced to retire from the New York City Police Department for medical reasons.

The People also called Dr.Caronna, a neurologist who treated Griffin since the assault and who was still treating him at the time of the trial. He described Griffin's injuries, the tests given to Griffin such as MRI's, the medication prescribed for him, his impairments and prognosis for recovery. Griffin's medical history was supplied to the defense and Dr. Caronna was extensively cross-examined based on the medical records.

NEWLY DISCOVERED EVIDENCE

THE DEFENSE CONTENTIONS

The defense newly discovered evidence claim is based on surveillance video and audiotapes made after the verdict that purportedly contradict Griffin's trial testimony, as well as his apparent [*4]mental and physical condition during his testimony.

The defense contrasts Griffin's testimony as well as his mental and physical appearance as a witness with the surveillance video and audiotapes of him taken about a month after the verdict, from March 20, 2006 through March 26, 2006. The defense contends the videotapes demonstrate Griffin's actual physical and mental condition at the time of the trial is totally irreconcilable with Griffin's appearance and testimony as a witness. The defense claims Griffin's physical appearance and movements, as well as his testimony about his condition at the trial were false and fraudulent and intended to deceive the jury and garner sympathy for him and hostility towards the defendants.[FN2]

THE PEOPLE'S CONTENTIONS

The People concede that at trial Griffin "limped and winced from what appeared to be pain" (People's response ¶ 9). However, they assert that the evidence is not "newly discovered" and claim that it is consistent with Griffin's trial testimony. They list the injuries he suffered a fracture of the petrus bone in his skull, an orbital fracture of his eye socket and nose and point to the battery of tests he underwent, medical visits, pain medications prescribed and extensive medical records to attest to his injuries. They contend his medical records include doctors' evaluations of him reflecting that he had good coordination, memory and motive function. Further they contend these medical records show he had both good and bad days. They point out that Griffin testified his pain varied from day to day and that he said he could do many normal activities such as driving.

The People also claim the surveillance tapes are not "newly discovered" because the defense failed to exercise due diligence in connection with securing this evidence and at best they would have been used to impeach Griffin at trial.

Regarding Amitrano's separate claim, the People state the evidence at trial was more than sufficient to support his conviction. They cite McCormack's testimony all three defendants assaulted him, and Griffin's testimony that immediately before the attack Amitrano was "getting up a head of steam and running towards Liam McCormack" to support their position. They also point to the testimony of Steve Dalton as additional evidence supporting Amitrano's conviction. Finally, they state that Amitrano could have been found guilty as either a principal or accomplice under the Court's instructions regarding the attack on McCormack and that the evidence supports his conviction under either theory. [*5]

THE SURVEILLANCE TAPES

The Court has repeatedly watched the surveillance tapes, listened to the accompanying audiotape, and read the transcript of the tape submitted by the defense. Certainly, Griffin appears to function adequately in those activities he is observed performing on the videotape and in his conversation with the defense investigator who was posing as a prospective buyer of his neighbor's home. He is more physically animated and relaxed than at the trial. His facial and head movements, are more normal, although he displays an unnatural carriage of his arms from time to time particularly the left and a repeated dropping of his head from time to time when he speaks. He also limps. An objective analysis of these tapes compared to his testimony at trial fails to disclose a conflict with his testimony. Contrary to the defense contention that, "Herbert Griffin perpetrated a fraud on the Court and upon the jury. Had he appeared on the witness stand like he appears on the surveillance tapes, the gravamen of this case would be entirely different," his trial testimony is consistent with the videotapes (Skoblar's Aff. ¶ 12).[FN3]

Mr. Skoblar says:

"Videotape 1" depicts Mr. Griffin doing daily activities. You will see him driving his new lime green Mustang Mach I; lifting heavy school bags out of his trunk with his left hand; talking on his cell phone held to his left ear (Griffin also claimed a loss of hearing in his left ear); reading the newspaper; and walking at a brisk pace. Nowhere does the footage show Mr. Griffin unable to keep his head up; nowhere does it show involuntary head movements; nowhere does it show uncontrollable blinking; nowhere does it show a loss of use of his left arm; nowhere does it show a dragging of his right leg. The only abnormality in the entire footage is that Griffin walks with a varying limp on his left side. A radiological exam on the date of the occurrence indicates that Mr. Griffin suffers from a sclerotic pelvis. This is a chronic condition and more than likely the cause of his limp. The prosecution never provided the defense with any of Mr. Griffin's orthopedic records (Skoblar's Aff. ¶ 13[a] [internal citations omitted]).

This evidence is simply not new. It is consistent and easily reconcilable with Griffin's testimony and appearance at the trial. Mr. Skoblar says the tape shows Griffin driving, lifting heavy school bags out of the trunk with his left hand, talking on his cell phone held to his left ear, reading the newspaper and walking at a brisk pace. At the trial Griffin testified:

Q.Have you been driving at all?

A.Yes, ma'am. I started driving.

Q.To what extent have you been driving?

A.Take the kids to school. On a regular basis it's taking kids to school, go to the supermarket, which is about a mile and a half away, go to the post office, if need be, go to the drug store certainly. And I have tried at suggestion of a couple of doctors to try driving on the highway. I live about two miles from a parkway. So I've tried that route into my old neighborhood in Queens. [*6]

Q.And does the pain in your head vary from day to day?

A.Definitely.

Q.At it's worst, are you able to function?

A.No. At the worst, I open my eyes and do I'm really not a big coffee drinker, as I explained to the ADA before. And I need a double shot of Starbucks espresso and Vicodin to pack the lunches for the kids. So that's when it's the worst (T 769).[FN4]

Also during the trial he testified, "[m]y face hurts. My head hurts, especially in the cold

weather, a weather like today, cold weather" (T 765). He also said in response to this question:

Q.And does the pain in your head vary from day to day?

A.Definitely (T 769).

Thus, it should be no surprise that Griffin was seen driving a car he testified that he did exactly that. Also, Dr. Caronna said he could drive. It should be no surprise that he bought the newspaper he spoke about loss of short-term memory not an inability to read. Griffin never testified that he lost strength or the ability to lift something from a car trunk, so there is nothing in the video inconsistent with his doing this. He also testified about his hearing as follows "I can't hear in my left ear correctly. Then I couldn't hear at all. Now I can hear sometimes I can hear a little. Sometimes I can't hear at all" (T 765). Thus, his use of a cell phone with his left ear is not inconsistent with his testimony. Further, in another segment of the tape he is seen reaching around his head with his left hand, holding his phone to his right ear perfectly consistent with the testimony at trial that his hearing in his left ear is not normal. Only someone with an auditory deficit in his left ear would reach around his head to put the phone to his right ear as Griffin does.

Again, regarding the contents of the videotape of a supposed female potential purchaser of a neighbor's house speaking to Mr. Griffin, it is true, he speaks "articulately and cogently in an approximately twenty minute conversation" (Skoblar's Aff. ¶ 13[b]). This is totally consistent with Griffin's testimony and demeanor on the witness stand. He was a very polite, thoughtful, [*7]and articulate witness. He testified for hours, not twenty minutes. He answered questions fully, candidly and politely on cross-examination as well as direct. Under cross-examination by Mr. Culleton he readily acknowledged that he could not say with certainty that he saw Amitrano strike or punch McCormack (T 830). He said he never saw Amitrano kick McCormack (T 830-831). He also said he didn't see Amitrano punching or kicking him (T 831). In response to the Assistant District Attorney's question he described his memory as follows:

Q.No problem. In terms of your cognitive memory issues, is the information that you knew prior to this incident different than the information that you learned since?

A.Definitely. My long-term memory, that is to say, my memory of incidents that or issues or things prior to this is still pretty clear by and large. I probably lost a little bit around the edges. I can't remember certain family events, weddings, christenings, things like that. Since then, I don't have a whole lot of recollection of much of anything (T 789).

He stated on cross-examination by Mr. Culleton

Well, I mean, in fairness to me I have to beg everyone's indulgence that my memory and my articulation is not quite what it should be moving forward from this incident. What I have said or done since then is really quite a blur. So, if you are asking if I specifically remember making a statement, the answer is I probably don't. If you ask me about something that I said an hour ago here I probably don't remember making the statement (T 1011).

There is nothing about the video or audiotapes that conflicts with his testimony or demeanor at trial. At trial he said his memory about events before he was attacked is pretty clear. This is not inconsistent with his conversation with the defense investigator who asked him about the neighborhood he lives in and other things he knew before the incident. In fact, during this casual conversation with the purported buyer he said, "oh, now, you're killing me. I got no short-term memory " The purported buyer said, "isn't that called a senior moment." Griffin, clearly with no intention to deceive, said, "no, it's called brain injury, is what it is." He also said, " I mean my big afternoon activity today was going to be to walk the dogs up to Mill Pond sit down on a bench " (Skoblar's Aff. Ex. D 24). He also told her he was unable to march in the parade last year when he got hurt and that he had to retire against his will (Skoblar's Aff. Ex. D 19). These statements support, not undermine his trial testimony. It is no surprise that at trial, confronting his attackers, waiting to testify, and then undergoing hours of questioning he had a "bad day."[FN5] Contrary to the defense claims, the videotapes do not substantiate the claim that he [*8]perpetrated a fraud on the Court and the jury, contradicted the evidence at trial, or that they would have destroyed his credibility if shown after his direct testimony.

APPLICABLE STANDARD

Pursuant to CPL 330.30(3), a court may set aside a verdict of conviction 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.

The defendant must establish each of the following six requirements to be entitled to a new trial: 1) new evidence must have been discovered since the trial; 2) it must have been undiscoverable before or during the trial by the exercise of due diligence; 3) it must be material to the issue; 4) it must not be cumulative; 5) it must not merely impeach or contradict the trial evidence; and 6) it must be of such character as to create a probability the verdict would be more favorable to the defendant if a new trial were granted; (see CPL 330.30[3]; People v. Salemi, 309 NY 208, 216 [1955], cert denied 350 US 950 [1956]; People v. Reyes, 255 AD2d 261, 263 [1st Dept. 1998]; People v. Taylor, 246 AD2d 410, 411 [1st Dept. 1998]). The determination of whether these requirements have been satisfied and to vacate a judgment and grant a new trial based on newly discovered evidence rests within the sound discretion of the trial court (see People v. Bryce, 88 NY2d 124, 128 [1996]; People v. Crimmins, 38 NY2d 407, 415-417 [1975]; People v. Santos, 306 AD2d 197, 198 [1st Dept. 2003], affd 1 NY3d 548 [2003]).

CONCLUSIONS OF LAW

After a review of the trial record, the affirmation of defense investigator Margaret Clemmons, the medical records of Herbert Griffin admitted into evidence at the trial, the video surveillance tapes and accompanying audiotape and transcript submitted by the defense, the Court concludes that the proffered evidence fails to satisfy the requisite statutory criteria for newly discovered evidence. Therefore, defendants are not entitled to have their convictions vacated on this ground nor for the related relief requested a subpoena for Griffin's medical records and an order compelling him to provide information about his medical history. Each of the requirements for a new trial will be discussed below.

DISCOVERED SINCE THE TRIAL

The surveillance tapes are "newly discovered evidence" only in the narrowest sense that the tapes were not made until after the verdicts. However, the issue of Griffin's medical condition was not new. The extent of Griffin's injuries was an element of each of the crimes charged. The defendants' moving papers attest that during the trial the defense was very cognizant of the apparent discrepancies between the extent of the injuries claimed by Griffin and his appearance as a witness, and the medical records given to the defense.

For example, Mr. Skoblar states, "a large part of my summation attempted to demonstrate the discrepancies in Griffin's medical records and his appearance on the stand" (Skoblar's Aff. ¶ 9). Mr. Skoblar continues in his affirmation: [*9]

It is undeniable that the impression Mr. Griffin gave was of a person who was severely handicapped. At the first sidebar during his direct, I advised that court that the manner in which Mr. Griffin testified came as a complete surprise inasmuch as the medicals turned over by the prosecution did not remotely indicate that Mr. Griffin was so gravely affected by his injuries. In fact the hospital cleared Mr. Griffin for release on January 3, 2005 just two days after his admission. None of the numerous medical reports by his treating neurologist, Dr. Caronna, indicated that Mr. Griffin dragged any foot, had any sort of problem with his left arm or suffered from any sort of involuntary head movements. Dr. Caronna saw Griffin monthly for thirteen months consecutive. A neurological exam by a Dr. Brookvar on June 9, 2005 at Columbia Presbyterian, memorialized by a four page report, found Mr. Griffin to be completely NORMAL (Skoblar's Aff. ¶ 10 [internal citations omitted]).



In paragraph 13, Mr. Skoblar's states,

[f]aced with the devastating verdict and with the irreconcilability of Griffin's physical appearance on the stand with the medical evidence, the defense had Herbert Griffin surveilled at various times from March 20, 2006 to March 26, 2006 (Skoblar's Aff. ¶ 13).

Clearly, the discrepancies the defense claims were revealed in the surveillance tapes were known to the defense during the trial. In cross-examination of Dr. Caronna by Mr. Skoblar, the following exchanges took place:

Doctor, you've treated Detective Griffin approximately once a month for the past year or so, right?

That's correct.

Okay. And you've done, every time you see him, you do clinical exams?

Right.

As a neurologist, what are you looking for in the clinical exams in Detective Griffin's case?

A.Well, I did his mental status, balance, hearing, coordination, and also talked to him about his feelings and his emotional response to it.

Q.Okay. And you've done reports pretty much concerning every visited, (sic) right?

A.That's right.

Q.Okay. And it would be important for you in those reports to note any abnormal findings, right?

A.That's right.

Q.And did you notice in your clinical examinations of Detective Griffin any involuntary movements?

A.I didn't.

Q.So I'm talking about now with the head for example, like involuntary movements of the head. [*10]Was there anything noted?

A.I don't recall. I didn't mention them. And I don't recall seeing them.

Q.And you would have noted them in your report had you seen them, correct?

A.Yes.

Q.Was it you, doctor, did you clear Detective Griffin to drive a car?

A.Did I? Yes, he can drive a car.

Q.If someone had involuntary head movements where they couldn't actually even keep their head up at certain times, it would drop down, would you clear someone to drive a car in that condition?

A.I haven't seen that. That's a tick. That's not a seizure. It's a tick. People have ticks, they can drive cars. They do anything. Fine. Lots of people have ticks.

Q.Did Detective Griffin report to you that he was having involuntary head movements?

A.I don't recall ever mentioning that.

Q.So the answer would be no?

A.The answer would be no (T 1335-1337).

Q.When you examined Detective Griffin, can you describe his gait?

A.Yes. I made a note of it. Wide based and he limped. On gait and station I'm sorry. First time he did not walk with a limb, (sic) and he didn't fall over. Although he complained of poor balance in my initial note, I said that I thought his balance on the test I administered was all right.

Q.I direct your attention to your report dated March 9, 2005. Do you have that in front of you?

A.Yes.

Q.In that you say it shows that his balance is mild and improving. You see note four on the first page?

A.Excuse me. Yes (T 1338-1339).

The cross-examination continued:

Q.Right. A little further down we have exam. You see the paragraph that says, "on gait and station, he did not limp as he had in January?"

A.Yes.

Q.And this is as of March 9, 2005?

A.Yes.

Q.If you go a little further down in the middle of the last paragraph, it says, "facial movements and sensation were symmetrical?"

A.Yes.

Q.What does that mean?

A.As I do this, they're equal and even (T 1340).

Q.Did you make any notation that Detective Griffin would keep his left arm close to his body?

A.No.

Q.In any of your reports did you make that notation that he would keep his left arm close to his body?

A.No, I did not. [*11]

Q.Thank you. In your exams of Detective Griffin, did you make any notations that he was that he would drag his left leg?

A.No.

Q.I'm sorry. Drag his right leg? I'm sorry.

A.He never dragged any leg (T 1340-1341).

A comparison of the alleged "new evidence" and Mr. Skoblar's cross-examination of Dr. Caronna compellingly demonstrates that the defense was aware of, and introduced evidence at the trial through Dr. Caronna, which, at least on the surface, supported the claim that Griffin's appearance was not justified by his medical history.

Thus, the admissions contained in the defense moving papers, the cross-examination of Dr. Caronna, and Mr. Skoblar's summation are irrefutable evidence the defense was totally aware that Griffin's physical condition did not appear to be supported by the medical evidence. However, for tactical reasons the defense chose not to cross-examine Griffin about this, although they questioned his neurologist in detail about the differences, and Mr. Skoblar emphasized these differences in his closing argument.

UNDISCOVERABLE WITH DUE DILIGENCE

Assuming arguendo, the evidence is newly discovered, it must also have been undiscoverable with due diligence before or during trial (People v. Friedgood, 58 NY2d 467, 471 [1983]). The defense has failed to satisfy this requirement. The defendants had the resources to retain private counsel, jointly order daily copy of the trial minutes for important witnesses and to retain investigatory staff to conduct a post trial investigation. The defense attorneys knew that Griffin's physical condition the extent of his injuries was an element of the crimes the People had to prove. The defense could have conducted surveillance of Griffin at any time up to and even during the trial. It is inconceivable that the defense did not have the resources and ability to do this surveillance prior to the verdict. Further, emphasizing the lack of due diligence is the fact Griffin testified on February 6, 2006 and February 9, 2006. The defense rested on February 17th after calling many witnesses. If the defense was as surprised by Griffin's appearance and testimony as alleged in their moving papers, it had ample time to investigate this after Griffin testified and prior to resting. The surveillance tapes could have been easily made before or during the trial. The failure to do so was either a tactical decision or due to a lack of due diligence, either of which is a ground to deny the relief sought.

Clearly, there exist sufficient grounds to deny this motion because the proffered evidence is simply not new, or assuming arguendo that it is new, because it could have been easily produced during the trial with due diligence. Although these reasons alone would compel the Court to deny the motion, additional reasons exist for denying it (People v. Salemi, 309 NY 208 [1955], cert denied 350 U.S. 950 [1956]).

CUMULATIVE, MERELY IMPEACHING OR CONTRADICTING THE TRIAL EVIDENCE AND NOT OF SUCH A CHARACTER TO CREATE A PROBABILITY OF A MORE FAVORABLE VERDICT.

The additional reasons for denying the motion is that this evidence is, at best, cumulative, merely impeaching or contradicting the evidence at trial, and not remotely of such a nature to probably result in a more favorable verdict if a new trial were granted (Salemi, 309 NY at 216).

The uncontradicted medical evidence at trial, independent of Griffin's testimony, conclusively shows he suffered serious physical injury. Dr. Caronna testified about the fracture of the orbital bone under Griffin's eye, the longitudinal fracture of the petrus bone in his skull, the fracture of his jaw joint, and bruising and bleeding in his brain which left permanent iron residue in his brain. Dr. Carrona testified about Griffin's limited ability to acquire new short-term memories, but that he retains old memories. Uncontradicted medical tests confirm the existence of these physical symptoms including the iron residue in his brain. Further, although not determinative of the issue of his physical condition, the records show that Griffin was forced to retire, for medical reasons, by the New York Police Department. Perhaps the compelling nature of this medical evidence is why Mr. Skoblar stated during the trial, " I don't think any defense counsel are going to say, no, this is not a serious injury that the man suffered" (T 775). Therefore, nothing captured in the surveillance videotapes remotely would have undermined the fact Griffin suffered serious physical injury. Since his injuries were established by independent medical evidence, the surveillance evidence would not "probably change the result if a new trial is granted" (Salemi, 309 NY at 216).

Therefore, the claim that new evidence warrants vacating the convictions is denied. This outcome is compelled not only because the defense failed to meet the requirements of Salemi, 309 NY 208, but because the Court is unpersuaded the proffered evidence is inconsistent with the testimony of Griffin or an indication his demeanor as a witness or his testimony was not a true reflection of his physical and emotional state at the time he testified. If the Court believed for a moment a fraud was perpetrated during the trial it would not allow the convictions to stand. However, the Court is abidingly confident this did not occur. Accordingly, the defense motion on this ground is denied.

DEFENDANT AMITRANO'S CLAIM THE EVIDENCE IS INSUFFICIENT

Amitrano claims the evidence is insufficient. In considering this motion, the trial evidence must be viewed in the light most favorable to the People (People v. Taylor, 94 NY2d 910 [2000]). In this light, it was more than sufficient to warrant the verdict convicting Amitrano of Assault in the Third Degree against Liam McCormack.

The jury was instructed it could convict Amitrano of this charge if, the people proved beyond a reasonable doubt that acting alone or in concert with others he committed all the elements of the crime. Griffin testified that "out of the corner of my eye I saw defendant Amitrano getting up a head of steam and running towards Liam McCormack" immediately before McCormack was attacked (T 749). McCormack testified all three defendants assaulted him (T 165, 178, 230). The defense may dispute this testimony but it is more than legally sufficient to support the conviction of Amitrano, and accordingly his motion on this ground is denied.

[*12]JUROR MISCONDUCT

Defendants jointly request a hearing alleging "juror misconduct may have affected a substantial right of the defendants" (see CPL 330.30[2]). The misconduct complained of stems from two sources. The first is a letter and notes which were hand-delivered to the Court on March 22nd, almost one month after the verdicts, from someone who identified herself as Alana Cash. The second is based on defense interviews with two jurors, T.R and J.W.

Alana Cash included a phone number in her letter. The letter and notes were delivered to a court officer who gave them to the Court. Alana Cash did not remain in Court and was never observed by the Court. In her letter, she claims she was a spectator who found herself walking behind four jurors as the jurors left Court on February 14, 2006. She claims she briefly overheard the jurors discussing the case as they walked towards the subway and heard one say to the others, "[a]t least it was fun today;" "[t]hey did it." Immediately after receiving the Cash letter and notes, the Court provided copies to all parties, resulting in the defense securing affidavits from two jurors, T.R. and J.W., alleging they had violated a number of the Court's instructions by discussing the case, including a witness-by-witness evaluation of testimony on a daily basis during the trial with other jurors, including the alternates, before deliberations began.

Based on the conduct described by Alana Cash and the affidavits of jurors T.R. and J.W., defendants move to set aside the verdicts on the ground of juror misconduct. Defendants argue jurors improperly engaged in premature deliberations and permitted "outside influences" to intrude upon the deliberative process.

The basic law in this area is that a juror is not permitted to impeach his or her own verdict. Indeed, at common law, a juror was never considered competent to impeach his or her own verdict, whether by affidavit or through direct testimony (Vaise v. Delaval, 1 Term R.aa [K.B. 1785]; McDonald v. Pless, 238 US 264 [1915]; Payne v. Burke, 236 AD 527 [4th Dept. 1932]). Although there is still a substantial reluctance to permit jurors to impeach their verdicts, some limited exceptions have emerged. The Court of Appeals stated:

[w]here a patent injustice to a defendant was present, [courts have] distinguished th[ose] case[s] on a philosophical ground, although the prohibited result, the impeachment of the verdict, remained. This was a recognition that the rule against jurors' impeachment of their verdicts should not operate in every case (People v. De Lucia, 20 NY2D 275, 279 [1967]).

The court explained the jurisprudential basis for allowing a juror to impeach his or her verdict as follows: "[s]tatements concerning outside influences on a jury, however, occurring less frequently and more susceptible to adequate proof, should be admissible to show that the defendant was prejudiced, for here the danger to our jury system is minimal compared with the more easily proven prejudice to the defendant" (People v. De Lucia, 20 NY2d at 279).

In addition to proving "outside influences" affected the jury's final decision, a defendant must also establish that improper conduct by a juror "may have affected a substantial right of the defendant" (see CPL 330.30[2]). Therefore, a defendant must demonstrate that he suffered a substantial risk of prejudice (Snediker v. County of Orange, 58 NY2d 647 [1982]; People v. Brown, 48 NY2d 388 [1979]). [*13]

Therefore, whether an inquiry must be made is within the sound discretion of the Court (People v. Friedgood, 58 NY2d 467, 470 [1983]). With respect to claims of juror misconduct, each case must be examined on its unique facts to determine the nature of misconduct and the likelihood that prejudice was engendered (People v. Brown, 48 NY2d 388, 394 [1979]). "Of course, not every misstep by a juror rises to the inherently prejudicial level at which reversal is required automatically" Id. However contrary to the People's position, if there is a factual dispute about what occurred, the Court must hold a hearing unless the facts alleged, if true, would not warrant the requested relief (CPL 330.40[2][f]) or if there exists uncontroverted evidence the alleged facts are false.

ALANA CASH LETTER

The defendants' first basis for the claim the jury was prematurely discussing the case comes from the hearsay allegations of Clemmons, the defense investigator, and the letter and notes from Alana Cash. Clemmons' affidavit has no evidentiary value and cannot serve as a predicate for concluding juror misconduct existed in this case, nor can an unsworn letter by Cash. Rather than submitting an affidavit from Cash, defendants attempt to substantiate their claim with the hearsay affidavit of Clemmons. Hearsay affidavits have uniformly been condemned (see People v. Friedgood, 58 NY2d 467 [1983]; People v. Salaam, 187 AD2d 363 [1st Dept 1992], aff'd 83 NY2d 51 [1993]).

Clemmons alleges in her affidavit that J.W., one of the two jurors who submitted an affidavit to the defense, was also involved in the discussion overheard by Alana Cash. According to Clemmons, J.W. confirmed that four jurors discussed the case on the way to the subway on February 14, 2006 and he identified those jurors. However, in J.W.'s affidavit there is no reference to this event, and the defendants fail to provide any reason why an affidavit from Cash was not submitted or why there was no reference to this in J.W.'s affidavit (People v. Friedgood, 58 NY2d at 472-473). Defendants' reliance on a hearsay affidavit combined with Cash's letter does not provide prima facie evidence of juror misconduct, and does not warrant a hearing. [*14]

AFFIDAVITS FROM TWO JURORS

Defendants' claim of juror misconduct premised on the affidavits of T.R. and J.W. raise substantial concerns.[FN6] The affidavits allege, in identical language, the jurors and alternates organized and recorded the testimony of each witness on a chalkboard, analyzed it, evaluated it and discussed the case among themselves on a daily basis. These claims, if true, reflect the type of outside influence that allows jurors to impeach their verdict (People v. Ordenana, 20 AD3d 39 [1st Dept. 2005]; People v. Marrero, 83 AD2d 565 [2nd Dept. 1981]). The determination of the truth and accuracy of these allegations, as well as the effect on the jury, if any, can best be ascertained at a hearing (People v. Smith, 59 NY2d 988, 990 [1983]).

Accordingly, the defendants' motion to set aside the verdict pursuant to CPL 330.30(3) is denied. The defendants' motion for a hearing pursuant to CPL 330.30(2) to explore allegations of jury misconduct based on the jurors' assertion that evidence was discussed in the jury room on a daily basis in the presence of the alternate jurors is granted. This constitutes the decision and order of the Court.

New York, New York

July 7, 2006

_______________________

Roger S. Hayes, J.S.C. Footnotes

Footnote 1: Sanchez's father is a retired NYPD Detective.

Footnote 2: The defense fails to consider the possibility that both depictions of Griffin were true and accurate: that when he testified in February 2006 he exhibited various physical incapacities and that in March 2006 he did not manifest such deficits.

Footnote 3: References to Mr. Skoblar's Affirmation refer to his April 6, 2006 Affirmation. Mr. Skoblar was Jurlina's counsel at trial.

Footnote 4: Hereinafter "T" refers to testimony in the Trial Transcript.

Footnote 5: During the trial when defense counsel asked the Assistant District Attorney if she had observed these physical conditions in Griffin she said that when he was emotional his condition was worse (T 743).

Footnote 6: A third juror, D.L., telephoned the Assistant District Attorney. He said he was interviewed telephonically by the defense investigator and agreed to sign an affidavit. However, the affidavit sent to him had been prepared for juror J.W. D.L. said he read the affidavit prepared for J.W. and that it was untrue. At the Assistant District Attorney's suggestion D.L. telephoned the Court and repeated this to the Court Clerk who informed the Court. The Court did not directly speak to D.L.