By Renwick, J.P., Manzanet-Daniels, Oing, Singh, JJ. The People of the State of New York, res, v. Tysheem McGregor, def-app — Defendant appeals from a judgment of the Supreme Court, New York County (Robert M. Stolz, J.), rendered December 11, 2017, convicting him, after a jury trial, of attempted murder in the second degree, assault in the first degree, criminal possession of a weapon in the second degree (two counts), and conspiracy in the second and fourth degrees, and imposing sentence. Debevoise & Plimpton LLP, New York (Joshua Cohen, Tara Raam, Colby A. Smith and Jil Simon of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald and Deborah L. Morse of counsel), for respondent. RENWICK J. In this appeal, we must consider whether a juror’s misconduct during jury deliberations deprived defendant of his right to a fair trial, and thus whether Supreme Court abused its discretion in denying defendant’s postverdict motion to vacate the judgment of conviction. Specifically, a juror, who was admittedly attracted to a People’s witness, sought to develop a relationship with that witness during jury deliberations. For the following reasons, we find that this juror misconduct did deprive defendant of a fair trial, and that Supreme Court abused its discretion as a matter of law when it denied defendant’s motion to vacate pursuant to CPL 330.30(2). Accordingly, we now grant the motion to vacate the judgment and remand the matter for a new trial. Defendant was charged with several counts of conspiracy, attempted murder in the second degree (four counts), and related offenses. The indictment alleged that, between May 2014 and June 2016, defendant, along with 19 others, was a member of an East Harlem street gang known as East Army and sought to assert control over gang territory by means including shootings, assaults, and firearms possession and trafficking. The substantive counts charged against defendant related to four shooting incidents, which took place on May 5, June 22, August 6, and December 21, 2015. One of the witnesses for the People testified that he was a member of a rival gang and was testifying against defendant as part of a cooperation agreement. He identified defendant as a member of East Army, although he admitted that he had only interacted with defendant three or four times, never spoke with him, and knew him mostly from his music videos, as well as “house parties and a couple of fights.” He also identified defendant in surveillance video from the June 22nd incident. After a six-week trial, which included testimony from nearly 100 witnesses, the jury found defendant guilty on the substantive counts related to the December 21st incident, as well as the conspiracy charges, but acquitted him of the substantive counts related to the remaining three incidents. After the verdict, but before sentencing, the cooperating witness informed the prosecutor that he had been corresponding with one of the jurors (Juror No. 6), who was currently visiting him in jail. Thereafter, on July 27, 2017, Juror No. 6 sent the prosecutor a letter requesting that the witness’s sentence be reduced in view of his cooperation. On August 30, 2017, the witness wrote to the court, asking its assistance in obtaining a marriage license to marry Juror No. 6. At a hearing on September 7, 2017, the prosecutor shared the results of her investigation into the relationship between the witness and Juror No. 6. The prosecutor determined that, on June 26, 2017, the juror sent a letter to the witness in jail. The juror stated that she was a juror in defendant’s case, that she “fe[lt] for” the witness, that “seeing [him] and hearing [him] up there on the stand made [her] feel some type of way,” and that she would like to write or speak to him, and included her phone number. The prosecutor represented that she had retrieved the witness’s phone records from jail, which reflected that he had called Juror No. 6 on July 4th but the call was not accepted, and that it was not until after the verdict was reached that they were able to connect. A CPL 330.30 hearing was held, at which both the witness and Juror No. 6 testified. The witness affirmed that he did not know Juror No. 6 before the trial, that the letter was the first contact he had with her, and that he was not able to get through when he called her on July 4th. He further testified that he and Juror No. 6 now talked 3 to 4 times a day and he had received approximately 50 letters from her. Juror No. 6 testified that she was inspired to write to the witness because she “felt bad for someone who really did try to change their life and then their history caught up” and “obviously there was a physical attraction.” The juror further testified that she was aware that she was not supposed to “reach out to anybody that is in the trial,” but “wasn’t even thinking about any of that at that moment” because she was “just being a human being making a mistake.” Juror No. 6 explained that she missed the witness’s call on July 4th, but knew from the voicemail that it was from him. However, she was not able to figure out how to call back until a couple of days later. The juror testified that she did not communicate with any of the jurors about the witness. When asked whether she understood the witness’s testimony to be adversarial to defendant, she responded, “In a way. I just didn’t see it like that because to me his whole testimony was like irrelevant to Tysheem’s trial.” After the hearing, defendant formally moved to set aside the verdict pursuant to CPL 330.30(2) on the ground of juror misconduct. The motion court denied the motion, holding that while the juror’s conduct was “unwise,” it was “not of the kind which may have [a]ffected the fairness of the proceeding or a substantial right of the defendant.” We disagree. CPL 330.30(2) authorizes a court to set aside a verdict on the ground of juror misconduct that “may have affected a substantial right of the defendant” and “was not known to the defendant prior to the rendition of the verdict.” If juror misconduct of the kind outlined in CPL 330.30(2) is found, the court is not to engage in a separate harmless error analysis (see People v. Estella, 68 AD3d 1155, 1158 [3d Dept 2009]; see also People v. Crimmins, 36 NY2d 230, 238 [1975]). However, “[a]bsent a showing of prejudice to a substantial right,” CPL 330.30(2) is not implicated in the first place. As such, “[e]ach case must be examined on its unique facts to determine the nature of the misconduct and the likelihood that prejudice was engendered” (People v. Irizarry, 83 NY2d 557, 561 [1994] [internal quotation marks omitted]; see also People v. Southall, 156 AD3d 111, 118-119 [1st Dept 2017], lv denied 30 NY3d 1120 [2018]). Both the state and federal constitutions guarantee the accused the right to a fair and “impartial jury” (People v. Johnson, 94 NY2d 600, 610 [2010]; People v. Blyden, 55 NY2d 73, 76 [1982]; People v. Branch, 46 NY2d 645, 652 [1979] ["protections afforded the accused at trial are of little value unless those who are called to decide the defendant's guilt or innocence are free of bias"]; Irvin v. A.F. Dowd, 366 US 717 [1961] [right to a fair and impartial jury is at the core of due process]). As the Court of Appeals recently reminded us in People v. Neulander, “nothing is more basic to the criminal process than the right of an accused to a trial by an impartial jury” (__NY3d__, __ [2019], NY Slip Op 07521 *1, quoting People v. Branch, 46 NY2d at 652 [1979]). Moreover, “the public at large” has a “concomitant right… that the jury appear to be impartial” (People v. Hartson, 160 AD2d 1046, 1048 [3d Dept 1990]). Juror misconduct includes both “actual bias” and “implied bias.” Despite its name, “actual” bias merely requires proof of “a state of mind” that is “likely” to preclude a juror from rendering an impartial verdict (People v. Torpey, 63 NY2d 361, 365 [1984] [internal quotation marks omitted]). Under CPL 270.20(1)(b), “[a]ctual bias… is not limited… to situations where a prospective juror has formed an opinion as to the defendant’s guilt” (Torpey, 63 NY2d at 366). It may be demonstrated where a prospective juror’s conduct indicates her inability to follow the court’s instructions. “Implied bias” exists where a juror “bears some … relationship to any such person [defendant, witness, prosecution] of such nature that it is likely to preclude [the juror] from rendering an impartial verdict” (CPL 270.20[1][c]; People v. Branch, 46 NY2d at 649-650). ”[T]he frequency of contact and nature of the parties’ relationship are to be considered in determining whether disqualification is necessary” (People v. Furey, 18 NY3d 284, 287 [2011). Implied bias "requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect [his or] her ability to be fair and impartial” (People v. Furey, 18 NY3d at 287; People v. Rentz, 67 NY2d 829 [1986] [juror's statement at posttrial hearing that relationship did not affect his impartiality is ineffective]). Here, there was both actual and implied bias. The misconduct by Juror No. 6 was willful and blatant – the juror was admittedly attracted to the witness, a cooperating witness testifying on behalf of the People, and sought to develop a relationship with him while jury deliberations were still underway – even though she knew this was not permitted. The juror knew during deliberations that the witness had tried to call her back, suggesting that the interest was mutual, and the juror is now in a very serious relationship with the witness and seeks to marry him. Although the juror denied that her feelings about the witness affected her thinking about defendant, she was at least arguably more likely to credit his testimony and could subconsciously have sought to aide the side with which the witness was aligned (see People v. Rentz, 67 NY2d at 831). Indeed, in People v. Southall (156 AD3d 111 [1st Dept 2017], this Court granted a CPL 440.10(1)(f) motion to vacate a conviction due to a juror’s misconduct in an analogous situation. Southall involved “[i]mproper and prejudicial conduct” in the form of a juror’s failure to reveal during jury selection that she had submitted an application to work for the District Attorney’s office. This Court found that actual bias could be inferred from the juror’s concealment of this information, notwithstanding her subjective belief that the pending application had no impact on her decision (id. at 121-122). The Court also found that the juror had an implied bias, as her job application “created a relationship between her and the DA’s office, which raised a high likelihood that she would be inclined to favor the People” (id. at 123-124). The instant case is similar to Southall in that both cases involved an as-yet unanswered request to create some type of relationship (either romantic or professional) with the prosecution or a prosecution witness. The juror’s knowledge that she was seeking a relationship with a witness who was testifying against defendant and in favor of the People created a disposition in favor of the People, which was “likely to preclude [her] from rendering an impartial verdict” (CPL 270.20[1][c]). As this Court held in Southall, the juror’s assertions of impartiality were irrelevant because her bias was incurable, and therefore, the defendant’s right to a fair trial before an impartial jury had been violated (id. at 124). The People contend that the juror’s misconduct was obviated by the fact that, even without the witness’s testimony, the case against defendant was overwhelming. Recently, in People v. Neulander, the Court of Appeals rejected a similar argument with regard to a misconduct by a juror who engaged in improper communications during trial. In People v. Neulander (__NY3d__, __, 2019 NY Slip OP 07521 *3), the juror misconduct, disregarding the court’s plentiful instructions as to outside communications, was exacerbated when the juror was examined by the court about the breadth of her outside communications and was repeatedly and deliberately untruthful about the scope of that misconduct. The People contended that however egregious the misconduct was, it was “significantly outweighed by the substantial proof of guilt presented at trial.” The Court of Appeals categorically rejected such argument because “‘[t]he right to a fair trial is self-standing and proof of guilt, however overwhelming, can never be permitted to negate this right’” (__NY3d__, __, 2019 NY Slip OP 07521 *3, quoting People v. Crimmins, 36 NY2d at 238) and “‘[t]he public at large is entitled to the assurance that there shall be full observance and enforcement of the cardinal right of a defendant to a fair trial’” (id.). The same concerns apply to this case where equally egregious juror misconduct undermined defendant’s right to a fair trial before an impartial jury. Finally, the verdict was not legally insufficient or against the weight of the evidence, and there is thus no basis for dismissal of the indictment. Since we are reversing the judgment and ordering a new trial, and granting the motion to vacate, we need not reach defendant’s remaining arguments. Accordingly, the judgment of the Supreme Court, New York County (Robert M. Stolz, J.), rendered December 11, 2017, convicting defendant, after a jury trial, of attempted murder in the second degree, assault in the first degree, criminal possession of a weapon in the second degree (two counts), and conspiracy in the second and fourth degrees, and sentencing him to an aggregate term of 15 years, should be reversed, on the law, and the matter remanded for a new trial. All concur. Judgment Supreme Court, New York County (Robert M. Stolz, J.), rendered December 11, 2017, reversed, on the law, and the matter remanded for a new trial. Opinion by Renwick, J. All concur. Renwick, J.P., Manzanet-Daniels, Oing, Singh, JJ. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
By Acosta, P.J., Richter, Mazzarelli, Webber, Kern, JJ. 10154. PEOPLE, res, v. Yenfri Ramirez, def-ap — Barry A. Weinstein, Bronx, for ap — Darcel D. Clark, District Attorney, Bronx (T. Charles Won of counsel), for res — Judgment, Supreme Court, Bronx County (Barbara F. Newman, J.), rendered May 29, 2014, convicting defendant, after a jury trial, of murder in the second degree, manslaughter in the first degree, assault in the second degree and criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 44 years to life, unanimously affirmed. The court properly denied defendant’s motion to suppress the physical evidence recovered after his arrest. The record establishes that there was probable cause for defendant’s arrest. At the suppression hearing, the People presented relevant evidence as follows: On the evening in question, defendant was stopped by police after the officer heard over the radio, via an anonymous tip, that there had been a shooting and that the shooter was an Hispanic male wearing a black and white White Sox baseball cap and a green jacket. The officer testified that while in his vehicle, about 5 blocks from the shooting location, he observed a person, later identified as defendant, who fit the description of an Hispanic male, wearing a black and white White Sox baseball cap and a green jacket, walking on the street. He testified that he saw defendant slow down behind the police vehicle, momentarily stop walking, take out a cell phone and put it to his ear, and then proceed to walk along the street. The officer further testified that after watching defendant for about 20 seconds, he and another officer exited their vehicle and stopped defendant on the sidewalk, about 10 or 15 feet away from where defendant had stopped and taken out his phone. Defendant was not handcuffed or arrested. The officers searched defendant but recovered no weapons or other evidence on his person so they released defendant, who left and walked away. Shortly thereafter, police officers found a gun approximately one foot away from where defendant had momentarily stopped walking and taken out his phone. Upon the recovery of the gun, defendant was located about one block away from where he was initially stopped. He was then stopped for a second time and arrested. The court properly determined that there was probable cause to arrest defendant and therefore, properly denied defendant’s suppression motion, based on all of the factors known to the police. These factors include that defendant’s clothing and physical appearance matched the description of the man involved in the shooting, the close spatial and temporal proximity of where defendant was found in relation to where the shooting had just occurred and the recovery of the gun in the vicinity where defendant, who fit the description of the shooter, had just been observed walking, momentarily stopping and walking again. Inasmuch as the police possessed probable cause to arrest the defendant when they did so, the physical evidence recovered from the defendant’s person such as his jacket, scarf, hat and phone, were properly recovered in a search incident to a lawful arrest (see People v. Lane, 10 NY2d 347, 353 [1961]). Moreover, as the arrest was legal, we reject defendant’s argument that the identifications should be suppressed as the fruit of an unlawful detention. To the extent defendant argues that his motion for suppression should have been granted on the ground that the police did not have reasonable suspicion to conduct the initial stop and frisk, we need not reach such issue as the police did not recover any evidence as a result of the initial stop and frisk of the defendant (cf. People v. De Bour, 40 NY2d 210 [1976]). In fact, after the initial stop and frisk, defendant was released and allowed to leave. It was only after defendant had already been released and the police recovered the gun in the vicinity of where defendant had momentarily stopped and put his phone to his ear that defendant was then stopped for a second time and arrested. Defendant’s assertion that his suppression motion should have been granted on the ground that the witnesses at the suppression hearing lacked credibility is without merit as the court’s credibility determinations are entitled to deference in light of its opportunity to observe the witnesses (see People v. Prochilo, 41 NY2d 759, 761 [1977]). In any event, we see no basis to reject the police testimony as incredible. The court also properly denied defendant’s motion to suppress the identification procedures used by the police, specifically, the photo array and the lineup. The People met their initial burden of establishing the reasonableness of the police conduct and the absence of any undue suggestiveness (see People v. Chipp, 75 NY2d 327, 335 [1990], cert denied 498 US 833 [1990]) by, among other things, introducing color copies of the photo array and a lineup photo showing that the fillers used by the police reasonably resembled the defendant. Defendant failed to meet his burden to show that the procedures were unduly suggestive or that they unfairly singled him out (see id.; People v. Mooney, 74 AD3d 617, 618 [1st Dept 2010], lv denied 15 NY3d 854 [2010]). Defendant’s argument that the verdict was not supported by legally sufficient evidence is unpreserved because defense counsel moved to dismiss the attempted murder count for reasons not raised on appeal and he did not seek dismissal of any other counts (see People v. Hawkins, 11 NY3d 484, 492 [2008]). In any event, we find that the verdict was supported by legally sufficient evidence and comported with the weight of the evidence (see People v. Denson, 26 NY3d 179, 188 [2015]; People v. Danielson, 9 NY3d 342, 348 [2007]). We find that the evidentiary trial rulings being challenged by defendant were all provident exercises of the court’s discretion. In any event, any error involving any of these rulings was harmless in light of the overwhelming evidence of guilt (see People v. Crimmins, 36 NY2d 230 [1975]). The court properly found that the defendant was not deprived of his right to a fair trial due to the prosecutor’s summation. While some of the prosecutor’s comments might have been inappropriate, his summation as a whole “did not exceed the broad bounds of rhetorical comment permissible in closing argument” (People v. Galloway, 54 NY2d 396, 399 [1981]). Further, the court did not err in finding that juror number nine was not grossly unqualified, after a proper and thorough inquiry. After the court was informed that the juror wanted to speak with the court and that he had made certain Facebook postings about the trial proceedings and his feelings regarding same, the court properly questioned the juror, in the presence of the attorneys, regarding his Facebook postings and whether he could still be fair and impartial (see CPL 270.35(1); People v. Buford, 69 NY2d 290, 299 [1987]). After the inquiry, the court found no reason to disqualify the juror and defendant has not provided any basis for disturbing the court’s findings. Finally, we perceive no basis for reducing defendant’s sentence. This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
