People v Novak

[*1] People v Novak 2014 NY Slip Op 50086(U) Decided on January 31, 2014 Sullivant County Ct LaBuda, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 31, 2014
Sullivant County Ct

The People of the Stat Eof New York,

against

Paul Novak, Defendant.



233-2012



Gary Greenwald, Esq.

Greenwald Law Offices

99 Brookside Avenue

Chester, NY 10918

Hon. James R. Farrell

Sullivan County District Attorney

414 Broadway

Monticello, NY 12701

Frank J. LaBuda, J.

This matter comes before the Court on Defendant's motion to set aside a jury verdict pursuant to CPL §330.30. The People have submitted an affirmation in opposition. Defendant submitted a reply. The Court held oral argument, and subsequently held a hearing on the issues raised by Defendant, at which hearing Defendant called numerous witnesses.

On September 27, 2013, after an eight week trial, a jury convicted Defendant of all counts in Sullivan County Indictment No.233-12: Murder in the First Degree, Murder in the Second Degree (two counts), Burglary in the Second Degree, Arson in the Third Degree, Grand Larceny in the Second Degree, and Insurance Fraud in the First Degree (two counts). Both the District Attorney and defense counsel made their closing arguments to the jury on September 24, 2013. Defendant now alleges that during defense counsel's closing statement, the court room was closed to the public, and therefore argues that Defendant was denied his right to a public trial under the Sixth Amendment to the United States Constitution. Defendant further argues that the verdict should be set aside because of inconsistent witness testimony, insufficient evidence, evidentiary errors and alleged juror misconduct. [*2]

The Court conducted a hearing on the within motion on January 30, 2014, and has reviewed the submissions and previous oral arguments by counsel. For the reasons set forth below, the Court denies Defendant's within motion in its entirety.

A court may set aside a verdict after conviction and prior to sentencing upon any ground appearing on the record, which, if raised upon appeal, would require reversal or modification by an appellate court as a matter of law. CPL §330.30(1). A trial court is limited under CPL §330 to examining issues of law, whereas an appellate court may delve in matters of fact. See People v. Carter, 63 NY2d 530 [1984]; see also People v. Ponnapula, 229 AD2d 257 [1st Dept. 1997]. The analysis is limited to determining the legality of a verdict. People v Trimm, 252 Ad2d 673 [3rd Dept. 1998]. In deciding a CPL §330 motion, every instance must be judged in favor of the People. People v. Floyd, 176 AD2d 554 [1st Dept. 1991], lv. denied 79 NY2d 829 [1992]. In addition, a trial court has no power to set aside a jury verdict on its own weighing of the evidence. People v. Goodfriend, 64 NY2d 695 [1984]. A trial court is only empowered to determine whether the evidence was legally sufficient to establish a defendant's guilt; it is the jury that is empowered to assess the evidence and determine the case based on its collective evaluation thereof. People v. Garcia, 237 AD2d 42 [1st Dept. 1988].

Alleged Courtroom Closure

When the issue of courtroom closure is raised post conviction, a defendant must have raised that objection at the time of the purported closure; if a defendant does not object at the time a court allegedly closes a courtroom, such objection is waived, as is the right to a public trial. People v. Marathon, 97 AD2d 650 [3rd Dept. 1983]; see also People v. Filer, 97 AD3d 1095 [4th Dept. 2012]; People v. Hughes, 240 AD2d 156 [1st Dept. 1997]. In the instant matter, defense counsel failed to raise any objection to the Court's limitations on ingress and egress into and out of the courtroom during counsels' summations when the Court made the following comment to the public audience immediately prior to the beginning of Defendant's summation: We will go for about 60 minutes straight and take a short five or seven minute break, then we will continue for another hour, if the attorney needs the other hour. So what I'm saying now is if you need a potty break now is the time to take it. I don't want some confusion or people getting up and down during the summations, again, because the attorneys that don't need any distractions whatsoever to worry about people coming in and out. Tr., pp. 3-4, September 24, 2013.

In fact, the Court, after articulating additional rules [FN1] of audience conduct during the summations, asked defense counsel if he was ready to proceed: [*3]

COURT: Mr. Greenwald, are we ready?

MR. GREENWALD: Yes sir, we are.

COURT: Bring in the jury please.

Tr., p. 4, September 24, 2013.

At no time during this exchange or any other time prior to beginning the first hour of his summation, did defense counsel object to the Court's comments regarding ingress and egress from the courtroom during summations. At no time prior to beginning his summation did defense counsel ask for clarification regarding ingress or egress during summations. At no time after hearing the aforementioned comments did defense counsel make any explicit objections or request a Hinton hearing.[FN2] See People v. Hinton, 31 NY2d 71 [1972]; People v. Sanabria, 301 AD2d 307, 311 [1st Dept. 2002].

"A defendant may waive his right to a public trial by his failure to object to the closure of the courtroom." People v. Marathon, 97 AD2d 650. While this Court in no way concedes that it closed the courtroom, which will be discussed in detail below, defense counsel's failure to object to the Court's directive regarding ingress and egress during summations at the time the comments were made, which in turn led to a court officer locking the courtroom doors for a very brief period of time and not allowing a small number of people who left the courtroom or arrived late to enter the courtroom for somewhere between 30 and 45 minutes, precludes him from raising this issue now, in a CPL §330 motion. Therefore, that portion of Defendant's motion to set aside the verdict based on an alleged courtroom closure is denied, as it is unpreserved for review.

However, the Court will nonetheless continue its analysis of the closure issue, since this was an eight week trial, including jury selection, and Defendant was ultimately convicted of all counts in the indictment, including murder in the first degree, which carries a sentence of life without the possibility of parole. The Court will address the merits of Defendant's claims regarding the alleged closure.

"Although a petitioner need not establish prejudice as the result of the denial of a public trial in order to be afforded relief, United States v. Kobli, 172 F2d 919 [3rd Cir. 1949], the petitioner must show that he was in fact denied a public trial." Snyder v. Coiner, 365 FSupp 321, 324 [NDWV 1973], aff'd 510 F2d 224 [4th Cir. 1975]. In Wallerv. Georgia, 467 US 39, 46-47 [1984], the Supreme court stated the importance of the public trial: (1) to ensure a fair trial, (2) to remind the prosecutor and judge of their responsibility to the accused and the [*4]importance of their functions, (3) to encourage witnesses to come forward, and (4) to discourage perjury. Furthermore, the US Supreme Court has divided court errors in criminal trials into two categories: trial errors and structural errors. See Arizona v. Fulminante, 499 US 279 [1991]. Trial errors require a harmless error analysis, whereas structural errors are those that are deemed fundamentally unfair and to which there is no harmless error analysis. Denial of a public trial is considered to be a structural error. Waller, supra, at 49. "It does not necessarily follow, however, that every deprivation in a category considered to be "structural" constitutes a violation of the Constitution or requires reversal of the conviction...." Gibbons v. Savage, 555 F3d 112, 120 [2nd Cir. 2009]. The issue, therefore, becomes whether a structural "closure" was trivial. Id., at 121. In evaluating whether a closure is trivial, the court must look to the four factors enumerated, supra, in Waller.

"In New York, the right to a public trial is guaranteed by statute, rather than constitution, but nevertheless remains a basic privilege of the accused." People v. Jelke, 308 NY 56 [1954]. The court in Jelke ultimately determined there was an unlawful closure and reversed,[FN3] finding the Court explicitly denied access to the trial proceedings to the public at large and the press and based that prohibition on "considerations of public decency and morality," which were not, by statute or common law, grounds upon which to close the courtroom. Id., at 64. Nevertheless, the Court stated: The public trial concept has, however, never been viewed as imposing a rigid, inflexible straitjacket on the courts. It has uniformly been held to be subject to the inherent power of the court to preserve order and decorum in the courtroom, to protect the rights of parties and witnesses, and generally to further the administration of justice. [Citations omitted.] Accordingly, its is recognized that the court may limit the number of spectators in the interests of health or for sanitary reasons or in order to prevent overcrowding or disorder. [Citations omitted.] Id., at 63.

In People v. Colon, 71 NY2d 410 [1988], a case in which the trial court actually ordered the courtroom doors to be locked, the Court of Appeals stated: Defendant's premise...that locking the courtroom doors during the charge to the jury results in a "closure" of the proceedings, does not withstand analysis. Unlike an order explicitly excluding members of the public, the trial court's actiondoes not explicitly exclude anybody and is designed solely to regulate the ingress and egress of the spectators. The right to a public trial has always been recognized as subject to the inherent power of the trial courts to administer the activities of [*5]the courtroom; suitably within the trial court's discretion is the power to monitor admittance to the courtroom, as the circumstances require, in order to prevent overcrowding, to accommodate limited seating capacity, to maintain sanitary or health conditions, and generally to preserve order and decorum, in the courtroom. [Citations omitted.] Locking the doors during the charge to avoid disruption—allowing those already present to remain—does not seek to exclude the public or frustrate the salutary purposes of public scrutiny....[M]embers of the press or public were permitted to attend the charge to the jury, upon the condition that they arrive at the beginning of the court's delivery and not leave until instructions has been completed. Id., at 416, emphasis added.

*** We conclude that a trial Judge's order to lock the courtroom doors during the charge to the jury, permitting all those who have timely arrived to remain in the courtroom, is not intended to exclude members of the public and does not constitute a "closure" of the proceedings....The decision to do so is within the discretion of the Trial Judge to assure tranquility and order in the courtroom. We hold, therefore, that the locking of courtroom doors during the charge to the jury—preventing only tardy spectators from entering the courtroom during this time—does not deprive defendant of his constitutional right to a public trial. Id., at 418; see also People v. Hughes, supra; People v. Filer, supra.

The New York Court of Appeals has long addressed the issue of closing or limiting access to the courtroom. In People v. Miller, 257 NY 54 [1931], in which the trial court limited the number of spectators for health and sanitary reasons during a three week trial, the Court of Appeals held there was no unlawful closing of the courtroom or denial of a public trial: "The trial was not secret. Not only all the witnesses, but also representatives of the public and in particular, so it is said, representatives of the press, were permitted to be present." Id., at 60. Even an inadvertent closure is not grounds for reversal. In People v. Peterson, 81 NY2d 824 [1993], the Court of Appeals reiterated that "A denial of the public trial right requires an affirmative act by the trial court excluding persons from the courtroom...." citations omitted.

In a case strikingly similar to the one at bar, both the United States District Court for the Northern District of West Virginia and the Fourth Circuit Court of Appeals denied a defendant's request for habeas corpus relief on the grounds he was denied a public trial. In Snyder v. Coiner, 365 FSupp 321 [NDWV 1973], aff'd 510 F2d 224 [4th Cir. 1975], during summations of counsel, a deputy sheriff denied access to the press and possibly others due to his misunderstanding of the trial court's posting him at the courtroom doors "in order to keep any noise or disturbance at a minimum." Id., at 323. The District Court stated: Although a petitioner need not establish prejudice as the result of the denial of a public trial in order to be afforded relief,...the petitioner must show that he was in [*6]fact denied a public trial. It is clear that a public trial is denied in situations where all testimony is taken in a private, closed proceeding....[In] the case at bar, however,...[the] exclusion of the public was from a relatively small portion of the trial, only the final arguments of counsel. All other parts of the trial (including the taking of testimony) occurred while the courtroom was open to the public. Neither the judge nor the parties were aware any exclusion was taking place....[The] deputy...stated that he thought his function was to permit no movement in or out of the courtroom. Id., at 324, citations omitted; See also Lacaze v. United States, 391 F2d 516, 520-521 [5th Cir. 1968].

In Snyder, as in the case at bar, the trial court did not order the exclusion of the public at any time. "The mistaken notion of the deputy, resulting in the barring of the public from the courtroom, does not amount to a denial of a public trial." Snyder v. Coiner, 365 FSupp 321, 323, emphasis added. On appeal, the Fourth Circuit held there was no constitutional depravation of the right to a public trial, stating, "...for a time during arguments of counsel before the jury, a bailiff refused to allow persons to enter or leave the courtroom. Such condition existed for but a short time and was quickly changed by the Court, when advised of the action of the bailiff. The bailiff, in acting as he did, merely sought to prevent any disturbance during the arguments. Snyder v. Coiner, 510 F2d 224, 230 [4th Cir. 1975].

The case at bar is distinguishable from other cases in which an Appellate Court found there was closure of the courtroom depriving a defendant of his or her Sixth Amendment right to a public trial under the United States Constitution and New York statutes. For example, in People v. Martin, 16 NY3d 607 [2011], in which the trial court, sua sponte, ejected the defendant's father from the courtroom during jury selection due to space constraints and a concern that the defendant's father might communicate with a potential juror, the Court of Appeals stated: ...[W]hen the trial judge sua sponte closed the courtroom, specifically ejecting defendant's father during voir dire without considering any alternative accommodations[,] such an action violated defendant's right to a public trial....Id., at 609....The record does not reflect that the court considered alternatives to closure, such as reserving a row of seating for the public or allowing defendant's father to be present elsewhere in the courtroom until a seat became available. Id., at 610, 611.

*** While the trial court does have an inherent power, at its discretion, to "monitor admittance to the courtroom..." such power does not extend to excluding specific [*7]members of the public from the courtroom. Id., at 612, citing Colon, supra.

Similarly, in People v. Mateo, 73 NY2d 928 [1989], the Court of Appeals held that a witness' subjective embarrassment about her testimony was not grounds to close the courtroom. [A]lthough the trial court is vested with discretion in choosing a method for determining if closure is necessary, here, the inquiry was insufficient to justify the limited closure....[H]ere the court excluded defendant's family and friends without establishing an adequate basis to determine that the witness was unable to testify about a particular matter in open court because of an incapacitating embarrassment...." Id., at 929, 930.

In Gibbons v. Savage, supra, the Second Circuit Court of Appeals reversed a criminal conviction on the grounds the defendant was denied a public trial. The Court of Appeals rejected the trial court's rationale for closure based on space constraints during voir dire, due to the trial court's failure to consider alternatives to closure. In Gibbons, as well as the other cases referred to, supra, the trial court affirmatively "closed" the courtroom. The Gibbons court stated however, that "So long as the public at-large is admitted to the proceedings, the Sixth Amendment does not guarantee access to unlimited members; the fact that a particular individual is not admitted does not constitute a violation of the Constitution." Id., at 116. The court specifically drew a distinction between categorically excluding the public from the courtroom versus exclusion of some members of the public for a legitimate reason. Id., at 117. "It does not necessarily follow...that every deprivation... constitutes a violation of the Constitution or requires reversal of the conviction." Id., at 120. For example, in Peterson v. Williams, 85 F3d 39 [2nd Cir. 1996], the Court would not vacate a conviction even though there was an unjustifiable, temporary courtroom closure during an important part of the trial—lasting 20 minutes during the defendant's testimony. The decision was based, in large part, on the fact that the trial judge was unaware of the closure, which was the result of an administrative malfunction.

In the instant matter, during the duration of the entire trial, the courtroom was never closed to the general public, the Court never ordered any members of Defendant's family out of the courtroom, never denied access to the courtroom to the press, and never denied access to any specific member of the public. In fact, both YNN and NBC [FN4] filmed most of the trial and the entire closing arguments by the People and defense counsel. Reporters and photographers from the New York Times, Times Herald Record, the Sullivan County Democrat and freelance reporters were present for all of the trial, including summations. At all times during the trial, the "public at-large" had unfettered access to the proceedings. See Gibbons v. Savage, supra.

During the CPL §330 hearing on January 30, 2014, Defendant's witnesses testified that [*8]they had undisturbed access to the courtroom throughout the entire trial, and defense counsel conceded he took no issue with access to the proceedings other than on the day and for the time period in question. Defense witness Donna Prevost, an employee of defense counsel, testified at the CPL §330 hearing that she had been in the courtroom on September 24, 2013, the day of closing arguments, when the Judge set down the rules for the audience. She further testified that Mary Burton, defense counsel's paralegal who was seated beside him at the defense table for the entire trial, directed her to leave the courtroom, after hearing the rules as stated above, to queue up a recording for defense counsel to use during summations. Ms. Prevost testified that although she was not permitted to re-enter the courtroom, a court officer delivered the queued recording to defense counsel. According to her testimony, Ms. Prevost did not attempt to send any type of message to Ms. Burton or defense counsel when she found out she could not re-enter the courtroom. Although she testified that Lydia Curanovic, defense counsel's executive secretary, was with her in the hallway outside the courtroom, she did not ask to use Ms. Curanovic's cell phone to send a message or attempt to call.

Defense witness Lydia Curanovic, also an employee of defense counsel, testified that she arrived at the courthouse late, after defense counsel began his closing argument, and was denied access to the courtroom. Although she testified that she had important papers for defense counsel to use during his summation, she did not ask a court officer to deliver the papers to defense counsel or the paralegal. While she maintains she sent a text message to someone indicating she could not enter the courtroom, defense counsel presented no records of such a text having been sent to either his or his paralegal's cell phone. Several other defense witnesses testified, all of who were either employed by or friends of defense counsel, with the exception of Assistant District Attorney Bonnie Mitzner. No one, other than Ms. Curanovic, testified to making any attempt to contact defense counsel or Ms. Burton upon being informed they could not enter the courtroom.

ADA Bonnie Mitzner testified that when she tried to enter the courtroom, a court officer told her she could not enter because it was his understanding that the Judge did not want any disturbances or disruptions that could distract the attorneys. Ms. Mitzner further testified, however, that she gained admittance within minutes when the Judge's Law Clerk and Court Attorney walked into the courtroom and told the court officer that he could not exclude anyone. That occurred approximately 25 minutes into the first hour of defense counsel's closing argument.

At that time, Ms. Mitzner further testified that there were no spectators waiting in the hall and that she did not recall seeing anyone, other than the Court Attorney, in the hall. This testimony contradicted that of Ms. Curanovic, who indicated she and a group of at least three other people waited in the hall for almost an hour before gaining admittance to the court room.

Regardless of who might or might not have been in the hallway outside the courtroom at any given time during the first hour of defense counsel's summation, the doors of the courtroom were physically opened at 10:35 am. It was at that time defense counsel first informed the Court of the administrative error and misunderstanding by the court officer, who upon inquiry by the [*9]Court, indicated he understood the Court's rules to mean no one was to exit or enter/re-enter during summations, and that he locked the door for a limited amount of time. Interestingly, Defendant did not call the court officer as a witness.

Despite the testimony at the CPL §330 hearing and considering all of the submissions, Defendant has offered no evidence that the Court, itself, denied access to the closing arguments to anyone from the public. At best, Defendant has argued that a court officer misunderstood the Court's admonition to the audience that they would not be permitted to exit or enter during the summations, an admonition to which defense counsel had no objection or response.[FN5] People v. Colon, supra; People v. Marathon, supra. During summations, the courtroom was filled almost to capacity with members of the public, press, staff from the District Attorney's office, courthouse personnel, Defendant's family members and friends, the victim's family and friends, and any other spectators from the public at large who wished to observe the proceedings. It was well within the Court's discretion to regulate ingress and egress during summations to preserve decorum and quiet so the attorneys and jury could focus on the matter at hand—closing arguments.[FN6] See Snyder v. Coiner, supra. On no occasion did the Court take any affirmative steps to limit public access to the courtroom, nor did the Court ever state that members of the public at large would be barred from the proceedings. See People v. Martin, supra; People v. Mateo, supra.

This is not a case in which the Court expelled specific members of the public from the courtroom, directed that anyone specific be excluded from the proceedings, or limited the number of spectators. See Gibbons v. Savage, supra. This is a case in which the Court provided the ground rules for public observation of the closing arguments prior to summations to preserve judicial decorum, defense counsel failed to object or ask for clarification regarding ingress and egress, and a court officer, zealous to follow the Judge's call for decorum, mistakenly locked the courtroom doors for a portion of defense counsel's first hour of closing arguments, thereby denying access to the courtroom to a very limited number of people who arrived late or left the courtroom. Snyder v. Coiner, supra. The situation did not, in any way, deprive Defendant of his [*10]

Sixth Amendment right to a public trial, especially considering much of the trial and all of the summations were recorded for use on pubic and cable television by YNN and NBC,[FN7] and newspaper reporters and still photographers were in the courtroom and reporting on the case on a daily basis. This was, perhaps, the most public, reported and televised criminal trial in the history of Sullivan County, New York.

None of the four factors as enumerated in Waller, supra, apply in the instant matter. The third and fourth factors are irrelevant, because the alleged closure occurred during summations, when no witnesses testified. Defendant received a fair trial—it lasted eight weeks and defense counsel was given substantial time to cross-examine witnesses and present his own evidence. Defendant has offered no evidence to remotely suggest the Judge or prosecutor failed in any manner to uphold their responsibilities to Defendant or that they did not properly carry out their functions and duties.

The defendant has not shown that he was denied a public trial. In fact, the record shows that this defendant received the most public trial in the history of Sullivan County with national TV, among others present. The erroneous exclusion of several members of the public outside of the courtroom was an administrative malfunction, Snyder v. Coiner, supra, for a relatively small portion of the trial, which was a small portion of defense counsel's first hour of summation. Indeed, members of the public were seated in the courtroom and remained in the courtroom throughout defense counsel's entire summation, while the media, including national (NBC) and local (YNN) television, radio and others remained in the courtroom to publicize counsels' summations. The Judge, who was accessible by court phone, cell phone and e-mail, was not notified of the "malfunction," nor was there any indication that the parties were aware that any exclusion outside the courtroom was taking place.[FN8]

Therefore, had defense counsel timely objected to the Court's rules regarding ingress and egress to and from the courtroom at the time the rules were articulated in open court, this Court would nevertheless be compelled to deny Defendant's motion to set aside the verdict on the ground his right to a public trial was denied.

Alleged Inconsistent, Insufficient Evidence and Evidentiary Rulings

Defendant's second argument in support of his motion to set aside the verdict is likewise without merit. On an CPL §330 motion, the court is limited to reviewing the legal sufficiency of the evidence, and must review the record in a light most favorable to the People. See People v. Carter, supra; People v Trimm, supra. [*11]

Defendant argues that there were inconsistencies between the testimony of prosecution witnesses Michelle LaFrance, Scott Sherwood, and Elise Hanlon, as well as inconsistencies within their own testimony, and therefore the District Attorney failed to meet his burden of proof beyond a reasonable doubt, resulting in a verdict based on insufficient evidence and against the weight of the evidence. Defendant also argues that the experts' testimony was speculative and requires the verdict to be set aside as a matter of law. While Defendant may not agree with how the jury interpreted each witness' testimony or how much weight or credibility it was given, he has presented no evidence or any valid argument to establish legal insufficiency of the evidence or trial testimony. This Court is not empowered to review factual issues or second guess how the jury weighed the evidence or perceived witness credibility. People v. Davis, 191 AD2d 705 [2nd Dept. 1993].

Nothing contained in Defendant's submissions or memorandum of law establishes that the subject witness' accounts were so unworthy of belief so as to be incredible as a matter of law. People v. Contes, 60 NY2d 620 [1983]. Defendant has offered no proof or evidence that the witness' testimony was "manifestly untrue," "physically impossible," or "self-contradictory." See People v. Walker, 155 AD2d 916 [4th Dept. 1989]; People v. Stroman, 83 AD2d 370 [1st Dept. 1981]. After a careful and thorough review of the record before this Court, Defendant has failed to show that the jury could not have logically concluded that "the People sustained its [sic] burden of proof." People v. Danielson, 9 NY2d 342, 349 [2007].[FN9] Defendant has failed to show this Court that any of the witness' testimony was hopelessly contradictory in and of itself, or hopelessly contradicted by the testimony of another witness. If the jury found contradictions in the testimony, it was the jury's prerogative to determine credibility and to give whatever weight it believed was appropriate to each witness. Because there was more than one witness in this case, People v. Ledwon, 153 NY 10 [1897] and its progeny does not apply; when there is contradictory testimony between numerous witness, the jury is faced with a credibility question, and that is not for the trial court to second-guess. See People v. Delamota, 18 NY3d 107 [2011].

Last, Defendant's claim that it was error for the Court to admit EZ Pass records and phone records into evidence is disingenuous, at best—Defendant previously consented to such records coming into evidence. Regarding the Wal-Mart receipt, the Court admitted that evidence with a limiting instruction, and Defendant's argument with respect to this piece of evidence is simply a reargument of a motion he made during the trial and is preserved for appellate review.

Therefore, that portion of Defendant's motion to set aside the verdict pursuant to CPL §330 on the grounds of insufficient and inconsistent evidence and evidentiary hearings is denied in its entirety.

[*12]Alleged Juror Misconduct

Defendant alleges juror misconduct based on a newspaper article in which the writer indicated an unnamed juror had credibility issues with a defense witness because the witness said he was watching a certain television program, "Gold Rush," on December 12, 2008, the evening on which the People claim Defendant and co-defendant Scott Sherwood met at Defendant's apartment in Glen Cove and then left for Narrowsburg to murder the victim. The juror claimed he knew that particular television program was not on the air until 2010, and so thought the witness could be confused and unreliable. Defendant argues that this juror placed information before the rest of the jury that was not within the ken of their experience. This argument is without merit.

Most people watch television, and therefore, television programming is within the common experience of most jurors. It is not alleged, nor has Defendant proved, that the juror in question offered some type of professional opinion in place of expert testimony rendered at trial. In People v. Davis, 86 AD3d 59 [2011], a case in which an attorney juror explained an application of law in a murder trial, the court denied the defendant's CPL §330 motion, stating, To adopt rules that have the effect of discouraging jurors from using their wisdom would remove an essential underpinning of the justification for our pride in the jury system [and that] the goal of the jury system [is to] encourage juries to aspire to use their collective wisdom, gained from the education and life experiences of each individual juror." Id., at 64, 67.

The Court finds no jury misconduct due to a juror, with common knowledge of television programming, knowing a certain television program was not on the air until almost two years after the witness said he was watching it, using that knowledge to evaluate the credibility of a witness. Therefore, Defendant' motion to set aside the verdict pursuant to CPL §330 based on juror misconduct is denied.

Based on the foregoing, it is

ORDERED that Defendant's motion to set aside the verdict pursuant to CPL §330 is denied in its entirety; and it is further

ORDERED that all parties shall appear for sentencing on January 31, 2014, at 9:30 am.

DATED:January 31, 2014

Monticello, New York

____________________________________

Hon. Frank J. LaBuda [*13]

Sullivan County Court Judge

And Surrogate Footnotes

Footnote 1:The additional rules included the turning off or placing on vibrate of all cell phones, and an admonition to the audience that there was to be no commenting by body language, eye rolling, or other means while the attorneys were speaking; failure to follow the rules would result in ejection from the courtroom.

Footnote 2:According to the records of the Clerk of Court, the court session for this matter that morning commenced at 9:20 am. Defense counsel began the first hour of his summation at 9:33 am and finished at 11:52 am. There was a recess during defense counsel's closing arguments from 10:35 to 10:53 am, at which time the doors to the courtroom were physically open.

Footnote 3:The trial court closed the courtroom to the general public and press during the People's case due to the anticipated "obscene and sordid details" that would be adduced during the trial, in the "interests of good morals," and due to the "offensive obscenity" involved with the trial. The prosecution involved charges of compulsory prostitution and other related offenses.

Footnote 4:Although the issue of cameras in the courtroom is under legislative review in New York, the parties consented to the cameras in the courtroom during many witnesses' testimony.

Footnote 5:Despite the fact that defense counsel was expecting his executive assistant and several friends to attend the proceedings, defense counsel did not ask the Court whether access to the courtroom might be had by his tardy office staff, tardy spectators or whether one of his assistants, who was in the courtroom when the Judge explained the audience rules for summations, would be permitted to re-enter once he began his summation. Although defense counsel argues, and the testimony of counsel's executive assistant indicates that she sent a text message regarding being excluded, allegedly within minutes of the summation beginning, neither defense counsel nor his paralegal (who was sitting at the defense table in the courtroom) informed the Court until after the first hour of summation that anyone had been excluded. None of Defendant's other witnesses testified to electronically or otherwise informing defense counsel of the exclusion.

Footnote 6:In fact, one of Defendant's own witnesses at he January 30, 2014, CPL§330 hearing, Ilona Novak (the defendant's sister) testified that throughout the trial she was very distracted by the opening and closing of the courtroom doors (which are old and noisy). She indicated that every time she heard the doors open she would turn around to see who was entering or leaving.

Footnote 7:NBC, in fact, ran a one hour special on this case on Dateline NBC shortly after the verdict was rendered.

Footnote 8:If, in fact, the defense attorney's executive assistant sent a text message indicating she could not get into the courtroom shortly after he began his summation, it was the defense's obligation to inform the Court immediately so the situation could be rectified and not wait until the recess during his summation.

Footnote 9:This case is distinguishable from People v. Calabria, 3 NY3d 80 [2004], cited by Defendant. The case at bar involved multiple witnesses, rather than a single prosecution witness who changed his testimony to such a degree that is was "hopelessly contradicted." Likewise, in People v. Foster, 64 NY2d 1144 [1985], the sole witness admitted to having been impaired at the time of the incident and his trial testimony was filled with "hopeless contradictions" concerning what he witnessed and where the acts occurred.