People v D'Angelico
Annotate this CaseDecided on October 19, 2004
Criminal Court of the City of New York, New York County
THE PEOPLE OF THE STATE OF NEW YORK
against
MARYANN D'ANGELICO, Defendant
2004NY054105
ShawnDya L. Simpson, J.
Defendant is charged with one count of Tampering with a Juror in the First Degree (Penal Law § 215.25). Defendant has brought a motion pursuant to Criminal Procedure Law (CPL) § 170.35 seeking dismissal of the instant accusatory instrument with prejudice. A response was filed by the People. For the foregoing reasons, the information is dismissed without prejudice.
To be sufficient on its face, an information must allege facts of an evidentiary character supporting or tending to support the charges (CPL § 100.15 (3)). The allegations must provide reasonable cause to believe that the defendant committed the offense charged (CPL § 100.40 (b)). The allegations must be based on non-hearsay and, if true, must establish every element of the offense charged and the defendant's commission thereof (CPL § 100.40 (c)). These requirements must be met for the information to be facially sufficient (People v. Alejandro, 70 NY2d 133 [1987]). The proceeding is fatally defective if the accusatory instrument fails to meet these requirements (Id.).
New York Penal Law § 215.25 provides that a person is guilty of tampering with a juror in the first degree "when, with intent to influence the outcome of an action or proceeding, he communicates with a juror in such action or proceeding, except as authorized by law." "The section proscribes only communicating with a juror with the specific intent of influencing the outcome of the action or proceeding" (9-85 New York Criminal Practice § 85.2 (Matthew Bender 2004), citing, In re Bregoff, 17 NYS2d 816 [App. Div., 2nd Dept. 1940]; People v. Gerrity, 291 N.Y.S. 236 [App. Div., 3nd Dept. 1936]; People v. Glen, 71 N.Y.S. 893 [App. Div., 4th Dept. 1901], aff'd, 173 NY 395 [1903]). "Consequently, innocent conversation with a juror, absent the required specific intent, is not violative of this section" (Id., citing, Calvaresi v. United States, 216 F.2d 891, 903 [10th Cir. 1954], rev'd w/o opinion, 348 U.S. 961 [1955] (decided under 18 U.S.C. § 1503, the federal counterpart to Penal Law § 215.25 )).
The jury instructions for the charge of tampering with a juror in the first degree provide that proof of the following four elements are required:
1.That on or about a particular date, a specific individual was a juror in an action or proceeding;
2.That on that date, in a specific county, the defendant communicated with the [*2]specific juror;
3.That the defendant did so with the intent to influence the outcome of such action or proceeding; and
4.That the communication was not authorized by law.
These four elements must be adequately alleged for the accusatory instrument to be sufficient on its face (C.J.I.2d NY Penal Law § 215.25).
The factual part of the accusatory instrument upon which the defendant is charged states the following: Deponent states that he is informed by Barbara Yanoscik, of an address known to the District Attorney's Office, that informant served as a juror on the case of Gallegos v. Elite Model Management Corporation, John Casablancas, Gerald Marie, Mary Ann D'Angelico and Monique Pillard, Index Number 120577/00, tried before the Honorable Louis B. York in New York County Supreme Court, Civil Term.
Deponent is further informed by informant that, while serving as a juror on the above-named case, she had a conversation with the defendant in the rest room at the courthouse, where the defendant communicated information about the plaintiff in the above-named case that was not in evidence at trial.Deponent is further informed that the defendant communicated this information with the intent of influencing the outcome of the trial.
The charge against the defendant is based on a communication she allegedly had with a juror in the restroom of the courthouse. The allegations provide that on or about May 1, 2003, Barbara Yanoscik was a juror in an action or proceeding, satisfying the first element of the charge. The second element is also satisfied with the allegation that on May 1, 2003, the defendant communicated with Ms. Yanoscik in the county of New York. However, the substance of the conversation is not provided in the information. The basis on which to presume that the communication was made with the intent to influence the outcome of the action or proceeding is not provided. Absent a reasonable showing that the communication was made with the specific intent to influence the outcome of the proceeding, this element of the charge is not sufficiently demonstrated.
A communication with a juror is not in and of itself a violation of the law (9-85 New York Criminal Practice § 85.2 (Matthew Bender 2004), citing, Calvaresi v. United States, supra ). Additional facts must be alleged for a showing that the communication could have influenced the juror or the outcome of the proceeding. For example, "[e]vidence that defendant said to juror, '[y]ou will have a chance now to see that justice is served; to see that the insurance companies won't get away with murder the way they have been, so far as verdicts are concerned,' sustains verdict of jury finding defendant guilty of [the charge] under this section" (NY C.L.S. Penal § 215.25 (2004), citing, People v. Gerrity, 291 N.Y.S. 236 [App. Div., 3rd Dept. 1936]). Additional facts are needed to demonstrate the specific intent required.
The allegations must be of an evidentiary character sufficient to support a prima facie showing of the charge (People v. Alejandro, 70 NY2d 133, 136-137 [1987]). The allegations do [*3]not provide evidence of an evidentiary character to support the charge that the defendant made a statement with the intent of influencing the outcome of the proceeding. The court cannot simply presume that since a communication was allegedly had between the defendant and a juror that it was made with the intent to influence the outcome of the proceeding. No facts are alleged to support the conclusion that the defendant intended in the alleged communication to influence the outcome of the proceeding. Conclusory allegations alone are insufficient (People v. Dumas, 68 NY2d 729 [1986]). Sufficient facts must be alleged for a reasonable inference of intent to be drawn. The allegations herein fail to establish every element of the offense. Therefore, the information is insufficient on its face (Id.).
Intent may be demonstrated through circumstantial evidence (People v. Johnson, 65 NY2d 556 [1985]). However, the instant information fails to provide allegations that would tend to show that the defendant specifically intended to influence the outcome of the proceeding. The only allegation that may be taken to infer intent is that the defendant had a communication with a juror. This allegation alone is not sufficient to reasonably infer that the defendant intended to influence the outcome of the case. The element of intent may have been shown with a description of what was allegedly communicate for an inference to be drawn. The allegations herein do not show that the defendant communicated with a juror with the intent of influencing the outcome of the proceeding. Consequently, the proceeding must be dismissed.
The defense is seeking dismissal with prejudice and rely upon People v. Singer, 44 NY2d 241 [1978] in support of their argument. However, the facts of the instant case are incompatible with those in Singer, supra , since that case involved a delay that took place over a period of years and the instant case does not give cause to preclude the defendant's prosecution for the offense alleged (see, People v. Conyers, 200 AD2d 438, 439 [App. Div., 1st Dept. 1994], appeal denied, 83 NY2d 870 [1994]). The defendant's motion to dismiss the proceeding with prejudice is therefore denied.
Accordingly, the information is dismissed in its entirety without prejudice.
In light of dismissal, the remaining issues raised in defendant's motion are deemed moot. This constitutes the decision, opinion and order of the Court.
Dated:New York, New York
October 19, 2004
______________________________
The Honorable ShawnDya L. Simpson
Judge of the Criminal Court
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