finding that conflicting factual allegations warrant a hearing rather than sole reliance on counsel's affidavitsSummary of this case from Agosto v. Senkowski
July 15, 1994
Appeal from the Monroe County Court, Wiggins, Jr., J.
Present — Green, J.P., Lawton, Fallon, Doerr and Boehm, JJ.
Case held, decision reserved and matter remitted to Monroe County Court for further proceedings in accordance with the following Memorandum: Following his conviction of arson in the third degree and criminal mischief in the second degree, defendant moved to set aside the verdict on the ground, inter alia, of juror misconduct. In support of the motion, defendant alleged that, since the trial, he had recalled that he and a sworn juror had worked at the same location for three years and that the juror had failed to disclose that prior relationship during voir dire. Defendant indicated that a "negative situation" had occurred during their working relationship that might have caused that juror to be prejudiced against him. Defense counsel submitted an affidavit wherein he averred that he telephoned the juror, who confirmed that she had worked at the same location as defendant. She then expressed concern that she might get in trouble if that information came out and, after consulting with her attorney, refused to answer any more questions.
County Court erred in denying defendant's motion without holding a hearing. When confronted with evidence suggesting possible juror misconduct, it is the better practice for the trial court to hold a hearing rather than to determine the issue on affidavits of counsel (see, People v. Smith, 59 N.Y.2d 988, 990). We conclude that the allegations that the juror concealed a past relationship with defendant and that she might harbor ill will toward him by virtue of that past relationship were sufficient to entitle defendant to a hearing (see, People v Harding, 44 A.D.2d 800). We, therefore, hold this case and remit the matter to County Court for a hearing on defendant's motion to set aside the verdict based upon possible juror misconduct. At the hearing, defendant will bear the burden of demonstrating that the juror concealed information during voir dire and that her sitting on the jury may have affected a substantial right of defendant (see, People v. Clark, 81 N.Y.2d 913, 914).
The verdict is supported by sufficient evidence and is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495). Defendant's argument that the court erred in failing to dismiss the indictment on the ground of legal insufficiency is not reviewable on an appeal from an ensuing judgment based upon legally sufficient trial evidence (see, CPL 210.30; see also, People v. Lowery, 151 A.D.2d 1026, lv denied 75 N.Y.2d 772). We have examined the remaining issues raised by defendant and find them to be lacking in merit.