People v Navarro-Negron
Annotate this CaseDecided on November 17, 2017
Supreme Court, Bronx County
The People of the State of New York, Plaintiff,
against
Felix Navarro-Negron, Defendant.
2952/2016
OFFICE OF THE DISTRICT ATTORNEY,
BRONX CO. (by Cassidy H. Crough, Esq.)
Attorney for the People
198 East 161st St.
Bronx, NY 10451
THE BRONX DEFENDERS (by Alice L. Fontier, Esq.)
Attorney for Defendant
360 East 161st St.
Bronx, NY 10451
Lester B. Adler, J.
Defendant moves under CPL 330.30 (2) for an order setting aside the jury verdict against him because of juror misconduct. Specifically, defendant claims that (1) the jurors usurped the judicial function by conducting and relying on outside legal research about the charges against defendant and (2) while, during deliberations, the jurors reviewed surveillance videos in evidence, they used features of the "media player" computer program which played the videos to change the images that been displayed to them during trial.
For the reasons set forth below, the motion is granted only to the extent that an evidentiary hearing is directed as to whether juror misconduct occurred and, if so, whether that misconduct affected a substantial right of the defendant. Determination of the motion is deferred pending the hearing. In connection with defendant's motion, this Court reviewed the following:
Notice of Motion & Affirmation in Support of Alice L. Fontier, Esq. dated on or about 9/14/17
Affirmation in Support of Alexandra Conlon, Esq. dated on or about 9/14/17
Affidavit in Support of V.A. Barrow dated 9/11/17
Affidavit in Support of Raisa Arias dated 9/12/17
Affidavit in Opposition of Cassidy H. Crough, Esq. dated 10/17/17
Memorandum of Law in Opposition
Letter in Reply from Alice L. Fontier, Esq. dated 10/26/17
Background — This case arose from a shooting on August 27, 2016 in Bronx County, for which defendant was indicted for Attempted Murder in the Second Degree and related charges. The case was tried before this Court in August and September 2017. During the trial, surveillance videos that captured the incident were entered into evidence (People's exhibits 7 - 9) and played for the jury in open court.
This Court submitted the following charges to the jury: Attempted Murder in the Second Degree, Attempted Assault in the First Degree, Assault in the Second Degree, Criminal Possession of a Weapon in the Second Degree, and Criminal Possession of a Controlled Substance in the Seventh Degree.
During deliberations, on September 5, 2017, the jury sent this Court a note asking to review the videos "as close as physically possible" (Court exhibit 4, attached hereto). The prosecution volunteered to provide a laptop computer on which the jurors could watch the videos in the jury room. The defense objected that the jurors might use the laptop's features and programs to enhance and change the video images they were watching. After hearing from the parties, this Court ruled that the jury could be provided with a laptop, provided that the laptop and its files were configured so that, while the deliberating jury played the videos, they would be unable to change the displayed image from what they had been shown during the trial.
While the laptop and its files were being prepared, the videos were replayed for the jurors in the courtroom. Before the playback, the foreperson asked this Court if jurors "who want to see anything closer" could step out of the jury box and approach the video monitor. This Court granted the request. The foreperson then asked, "[C]an we ask for something to be . . . zoomed in?" This Court denied that request.
On September 6, 2017, the jury requested, among other things, written copies of this Court's instructions about the definition and elements of the charged crimes which they could take to the deliberation room (Court exhibit 5, attached hereto). After providing notice to the parties and an opportunity to be heard, this Court denied the request for written copies of the instructions, but re-read the instructions to the jury.
After the jurors had re-watched the video in court and heard the instructions again, the jury sent another note asking to view the videos again "on a laptop in our jury room" (Court exhibit 6, attached hereto). This Court told the jury that, hopefully, the laptop would be provided to them on the next day, September 7, 2017.
Thereafter, the People provided defense counsel with the prepared laptop, containing the video files and a media player program for viewing them. Defense counsel inspected these items and consented to their use by the jury.
On September 7, 2017, the inspected laptop computer was delivered to the jury room. Counsel agreed on the record that the laptop had been "wiped of any other capability aside from playing the actual video files."
On September 8, 2017, the jury returned a verdict convicting defendant of Assault in the Second Degree, Criminal Possession of a Weapon in the Second Degree, and Criminal [*2]Possession of a Controlled Substance in the Seventh Degree.
Motion — In support of his juror misconduct claims, defendant submits the affidavits of V.A. Barrow and Raisa Arias, who sat as jurors in this case. Barrow and Arias state that one or more jurors researched the law at their homes and brought their research notes into the deliberation room.[FN1] These jurors argued to the others that their research "indicated that the 'intent' language was boilerplate and did not apply to Assault in the Second Degree."
Moreover, according to Barrow and Arias, other jurors [FN2] "produced a printed copy of . . . jury instructions" which they had obtained at home.[FN3] These jurors purportedly told the others that their instructions set forth the elements of the charges against defendant. Barrow and Arias state that the instructions that the jurors provided "were different than those provided by the Court." Further, "the deliberating jurors read and relied" on the jurors' instructions.[FN4]
In addition to claiming that jurors conducted and used outside legal research, Arias also states that a different juror "enhanced" the images from the surveillance videos, using the laptop computer in the deliberating room. According to Arias, "[t]he enhancement included zooming in, increased sharpness, increased contrast, slow-motion and other effects." Based on the enhancements, Arias states, she and other jurors discredited the account of the shooting provided by Ana Pagan, a key defense witness, who testified that defendant did not have control over the gun in the shooting when it was fired.
Discussion — CPL 330.30 limits the bases for setting aside a jury verdict before sentencing. A defendant moving under CPL 330.30 can assert three grounds for relief, of which only the second is relevant here:
"That during the trial there occurred, out of the presence of the court, improper conduct by a juror . . . which may have affected a substantial right of the defendant and which was not known to the defendant prior to the rendition of the verdict . . . ."(CPL 330.30 [2]).
If a court cannot determine a motion to set aside a verdict by examining the moving papers, it must conduct a hearing and make findings of fact essential to determining the motion (see CPL 330.40 [2] [f]; People v Marsden, 130 AD3d 945 [2d Dept 2015], lv denied 26 NY3d 1041 [2015]). For motions brought under CPL 330.30 (2), "[a]bsent a showing of prejudice to a substantial right, . . . proof of juror misconduct does not entitle a defendant to a new trial" (People v Irizarry, 83 NY2d 557, 561 [1994]; see also People v Brown, 48 NY2d 388, 394 [1979] ["not every misstep by a juror rises to the inherently prejudicial level at which reversal is required automatically"]). Rather, "[e]ach case [must] be examined on its unique facts to [*3]determine the nature of the misconduct and the likelihood that prejudice was engendered" (People v Clark, 81 NY2d 913, 914 [1993]).
Here, Barrow's and Arias's affidavits raise triable issues whether jurors conducted outside legal research and introduced their results into the juror room, and, if so, whether that misconduct affected defendant's substantial rights (see People v Thomas, 184 AD2d 1069, 1069 [4th Dept 1992.[FN5] Accordingly, a fact-finding hearing is directed. The scope of that hearing must be clarified. The People have consented to a hearing "solely to address defendant's contention that the jurors utilized improper legal instructions." More specifically, a hearing is necessary to determine whether jurors (1) conducted outside legal research about the charges against defendant, (2) brought notes about their outside research to the ongoing deliberations, and (3) told the other jurors that, based on their research, intent is not an element of Assault in the Second Degree, a statement which both contradicts this Court's instructions and is patently incorrect (see CPL 120.05). Further, a hearing is needed to determine whether (4) jurors brought their own "jury instructions" to the deliberation room, and (5) whether the deliberating jurors read or relied on those "instructions" in reaching a verdict.[FN6]
Defendant argues that a hearing is unnecessary because, with respect to the allegation that jurors conducted outside legal research and brought the results into the jury room, the People "conceded that the essential facts are true." The People did not submit affidavits to controvert Barrow's and Arias's (see People v Ciacco, 47 NY2d 431, 438 [1979]). However, while the jurors' affidavits make out a colorable claim that misconduct may have affected defendant's substantial rights, they do not establish that fact.
The hearing shall also address defendant's claim that, in the deliberation room, the jurors watched video images of the shooting incident which differed from what they had viewed during the trial. Contrary to the People's argument, the questions whether (1) the purported changes constituted misconduct and (2) if so, whether the misconduct substantially prejudiced defendant cannot be determined as a matter of law. The cause, extent, and nature of the alleged changes must be determined. An additional issue is whether the purported changes caused the jurors to discredit Ana Pagan's testimony.
Accordingly, a hearing is ordered as set forth above. The parties have been directed to appear before this Court on November 20, 2017 at 9:30 a.m. for a pre-hearing conference.
This constitutes the decision and order of the Court.
Dated: November 17, 2017
Bronx, New York
[*4]
HON. LESTER B. ADLER
SUPREME COURT JUSTICE Footnotes
Footnote 1:Arias states that one juror conducted outside research; Barrow indicates that more than one juror did so.
Footnote 2:Arias states that one juror produced the printed copy; Barrow indicates that more than one juror did so.
Footnote 3:Arias adds that the juror found the information online.
Footnote 4:Barrow adds that the jurors also relied on "what we remembered the Judge saying."
Footnote 5:Assuming that the alleged jury misconduct occurred, it is undisputed that defendant would not have known about it before the verdict was returned.
Footnote 6:In its preliminary instructions to the jury, and before releasing the jury each day during deliberations, this Court admonished the jurors not to "attempt to research any fact, issue or law related to this case, whether by discussion with others, by research in a library or on the internet, or by any other means or source" (see CJI2d [NY] Model Instructions).
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