People v Giarletta

[*1] People v Giarletta 2007 NY Slip Op 52379(U) [18 Misc 3d 1102(A)] Decided on December 17, 2007 Supreme Court, Richmond County Collini, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2007
Supreme Court, Richmond County

The People of the State of New York,

against

Ralph Giarletta, Defendant.



363/2006



Appearance of Counsel:

Daniel M. Donovan, Jr., Esq.

District Attorney of Richmond County

By: Yolanda Rudich, Esq.

Neal Cohen, Esq.

Assistant District Attorneys, Of Counsel

Joseph V. Sorrentino, Esq.

James M. Branden, Esq.

Attorneys For Defendant

Robert J. Collini, J.

Upon consideration of the defendant's motion, dated July 10, 2007, to set aside the verdict (CPL 330.30 [2]) and the People's written response, dated September 21, 2007, it is decided [FN1] as follows:

A jury trial was conducted, whereat the counts of Criminal Sexual Act in the Third [*2]Degree (PL 130.40 [2]) and Endangering the Welfare of a Child (PL 260.10), were submitted for deliberation on May 18, 2007.

On May 21, 2007, with the consent of both parties, the Court accepted the jury's rendition of a partial verdict, upon which the defendant was convicted of Endangering the Welfare of a Child.

On May 22, 2007, based upon several jury notes issued subsequent to the partial verdict, the Court read an Allen charge to the jury for the first time. Additional notes followed, all of which sought guidance from the Court. During the afternoon, the Court was informed that Juror No.10 had left the jury room citing heated discussions which involved expletives hurled at that juror from other jurors. Juror #10 was individually ordered by the Court to return to the jury room and continue deliberations. The entire panel was returned to the courtroom and directed to maintain respect for each other in their deliberation.

Deliberations continued on May 23, 2007 and May 24, 2007. Several notes were issued by the jury indicating a stark impasse on May 24, 2007, after which point, a mistrial was declared.

The defendant filed the instant motion as indicated above, and the Court granted that portion of his motion which requested an evidentiary hearing [FN2]. In his motion, the defendant contends that Juror #9 had telephone conversations, during jury deliberations, with her sister through which alleged information was provided regarding the complaining witness and that such information was then conveyed to other jurors.

HEARING

The primary factual allegation of juror misconduct focused on a text message that Juror #9 allegedly received after the jury was separated for the evening during deliberations. Juror #9 was walking to the parking lot with other jurors when she conveyed the substance of the text message - which was from Juror #9's sister - stating that the complaining witness was telling the truth.

Testimony of Juror #5 and Juror #6

Juror #5 and Juror #6 both testified at the evidentiary hearing that on one of the days of jury deliberation, when the Court sent them home for the evening, they were walking to the parking lot with Juror #9 and other jurors, when Juror #9 informed them of the substance of a text message. Both jurors were emphatic that this occurred after the partial verdict was rendered and, regardless, that it had no effect on their further deliberation, nor on their abilities to be fair and impartial.

Testimony of Juror #1

Juror #1, formerly an alternate juror, testified that she did not recall the text message, but that Juror #9 did add information during deliberations that was not in evidence at trial. Nevertheless, Juror #1 testified that she was uncertain whether the extraneous information was injected before or after the rendition of the partial verdict, and, in any event, it had no effect on her ability to deliberate and to be fair and impartial.

[*3]Testimony of Juror #9

Juror #9 testified under a grant of immunity by the People and in the presence of assigned counsel. Juror #9 is twenty-three years old and her sister is twenty-one years old.

Contrary to the Court's instructions issued since the inception of jury selection, Juror #9 admitted that she told her family about the case on which she was seated, including her sister.

The text message in question was received by Juror #9 after the partial verdict was rendered, and it did read, in substance, that the complaining witness was telling the truth. Juror #9 did acknowledge that she conveyed this message to another juror when they were walking outside after deliberations ceased for the day, but that she did not mention it to other jurors.

She further testified that neither she nor her sister knows the complaining witness. As Juror #9 depicted during her testimony, the complaining witness is known to a "little sister" of an "older" sorority sister that "older" sorority sister is a member of the same sorority to which Juror #9's sister belongs.

Although Juror #9 testified that she had spoken with her family about the case prior to the partial verdict, her recollection was unspecific as to the substance of any such pre-partial verdict communication.

Finally, as to the argument between certain jurors and the juror who left the jury room during deliberations, it did not involve the text message in question and was merely the product of intense deliberations.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

"To prevail [on this motion] defendant must not only prove misconduct by a preponderance of the evidence (CPL 330.40 [2][g]), but he must also show that it created a substantial likelihood of prejudice.'" People v. Rhodes, 92 AD2d 744, 745 (4th Dept 1983), quoting, Snediker v. County of Orange, 58 NY2d 647, 649 (1982).

Although "[i]t has long been familiar law that jurors may not impeach their own duly rendered verdict by statements or testimony averring their own misconduct within or without the juryroom [sic]" (People v. Morales, 121 AD2d 240, 241 [1st Dept 1986], quoting, People v. DeLucia, 15 NY2d 294, 296 [1965], cert denied, 382 US 821 [1965], on rearg, 20 NY2d 275 [1967]; see also, People v. Anderson, 249 AD2d 405 [2d Dept 1998]), the Court found it a provident exercise of its discretion to grant an evidentiary hearing.

In any event, the defendant has failed to meet his burden.

Under the circumstances of this case, the pivotal question is whether misconduct arose, which created a substantial likelihood of prejudice prior to the jury's rendition of the partial verdict. This question must be answered in the negative, not merely because the defendant failed to meet his burden, but because the totality of the evidence demonstrates that no articulable nor specific misconduct could have possibly arisen until after the partial verdict.

Having had the opportunity to observe the various witnesses testify and their respective demeanor, the Court finds them to be credible. The Court finds that the only misconduct that arose which created any risk of prejudice to the defendant was the sole text message.

Here, Juror #9 received a text message from her sister as she, along with other jurors, [*4]were walking to their vehicles after a day [FN3] of deliberations, which occurred after the partial verdict was rendered. The text message referred to the complaining witness's credibility. Juror #9 relayed this information to Juror #5 and Juror #6, while Juror #1 was unaware of the text message.

Nevertheless, it is clear that the text message did not occur until after the rendition of the partial verdict, thereby negating any allegation that such misconduct could have created a substantial risk of prejudice that is not otherwise academic.

As to the generalized allegations to which Juror #9 could not attest with any specificity - nor was any other evidence adduced in support thereof - such are "based on little more than speculation as to the possibility of prejudice" and, in any event, the defendant has failed to meet his burden. People v. Simon, 178 AD2d 447 (2d Dept 1991), quoting, Snediker v. County of Orange, 58 NY2d at 649.

The arguments between certain jurors during deliberations subsequent to the partial verdict were merely the product of passionate debate by jurors as to the remaining count, upon which a mistrial was ultimately declared.

Accordingly, the defendant's motion is denied.

This constitutes the decision, opinion and order of the Court.

__________________________

Dated: December 17, 2007J. S. C.

Staten Island, New York Footnotes

Footnote 1: This written decision supplements the Court's oral decision, rendered on November 16, 2007 after the conclusion of testimony, which denied the instant motion.

Footnote 2: Testimony occurred on November 15, 2007 and November 16, 2007.

Footnote 3: There was no specificity from any witness as to the date this occurred, except that it was after the point when the partial verdict was rendered.