Opinion
2014–11608 Ind. No. 139/13
12-02-2020
The PEOPLE, etc., Respondent, v. Rosendo TORRES, Appellant.
Troy A. Smith, White Plains, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Autumn S. Hughes of counsel), for respondent.
Troy A. Smith, White Plains, NY, for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Autumn S. Hughes of counsel), for respondent.
MARK C. DILLON, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Tammy Robbins, J.), rendered December 11, 2014, convicting him of criminal sexual abuse in the first degree (five counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins , 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish his guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson , 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo , 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero , 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant contends that the Supreme Court erred in denying, after a hearing, the defendant's motion pursuant to CPL 330.30(2) to set aside the verdict based upon allegations of juror misconduct. "Generally, a jury verdict may not be impeached by proof of the tenor of its deliberations, but it may be upon a showing of improper influence" ( People v. Brown , 48 N.Y.2d 388, 393, 423 N.Y.S.2d 461, 399 N.E.2d 51 ; see People v. Davis , 86 A.D.3d 59, 64–65, 924 N.Y.S.2d 132 ). Improper influence embraces jury conduct which tends to put the jury in possession of evidence not introduced at trial (see People v. Brown , 48 N.Y.2d at 393, 423 N.Y.S.2d 461, 399 N.E.2d 51 ). When determining a motion to set aside a verdict based upon juror misconduct, "the facts must be examined to determine the nature of the material placed before the jury and the likelihood that prejudice would be engendered" ( People v. Brown , 48 N.Y.2d 388, 394, 423 N.Y.S.2d 461, 399 N.E.2d 51 ; see People v. Maragh , 94 N.Y.2d 569, 573–574, 708 N.Y.S.2d 44, 729 N.E.2d 701 ). "Absent a showing of prejudice to a substantial right, proof of juror misconduct does not entitle a defendant to a new trial" ( People v. Lemay , 69 A.D.3d 757, 758, 894 N.Y.S.2d 63 ; see CPL 330.30[2] ; People v. Davis , 86 A.D.3d at 64, 924 N.Y.S.2d 132 ). Moreover, where a trial court's factual finding on a CPL 330.30 motion has support in the record, it should not be disturbed (see People v. Ceresoli , 88 N.Y.2d 925, 926, 646 N.Y.S.2d 789, 669 N.E.2d 1111 ).
Here, the defendant's contentions do not rise to the level of improper influence, but seek to impeach the verdict by delving into the tenor of the jury's deliberative process (see People v. Anderson , 249 A.D.2d 405, 406, 671 N.Y.S.2d 149 ). While jurors 3, 9, and 10 made off-hand references to their life experience in examining and weighing the evidence, they did not hold themselves out as experts on those matters (see People v. Maragh , 94 N.Y.2d 569, 574, 708 N.Y.S.2d 44, 729 N.E.2d 701 ). Jurors are not expected to abandon their cognitive functions and to discourage them from "using their wisdom would remove an essential underpinning of the justification for our pride in the jury system" ( People v. Davis , 86 A.D.3d at 64, 924 N.Y.S.2d 132 ).
Furthermore, any mention by juror 9 of sentencing was accompanied by her acknowledgment that the jury was not to consider the defendant's potential sentence in arriving at its verdict. To the extent juror 3 did not disclose during voir dire that certain of her relatives had once been subject to a family offense, she testified at the CPL 330.30 hearing that she "didn't really think about it at the time" as she had interpreted the question at voir dire as involving "someone being robbed or mugged" and that the family experience led her to believe, if anything, that the defendant was not guilty rather than guilty (see People v. Clark , 81 N.Y.2d 913, 913–914, 597 N.Y.S.2d 646, 613 N.E.2d 552 ). Any remaining contentions of juror misconduct are without merit.
Based on the record and under the circumstances of this case, the defendant failed to demonstrate a likelihood of prejudice to a substantial right so as to warrant setting aside the verdict (see CPL 330.30[2] ; 330.40[2][g]; People v. Marsden , 130 A.D.3d 945, 946–947, 16 N.Y.S.3d 563 ). As the Supreme Court's determination at the CPL 330.30 hearing is supported by the record, it should not be disturbed (see People v. Ceresoli , 88 N.Y.2d at 926, 646 N.Y.S.2d 789, 669 N.E.2d 1111 ; People v. Rivera , 31 A.D.3d 670, 671, 817 N.Y.S.2d 919 ).
DILLON, J.P., BARROS, CONNOLLY and CHRISTOPHER, JJ., concur.