The Court of Appeals remitted this matter for a hearing on the defendant’s motion to set aside verdict pursuant to CPL §330.30 (2). After hearing the witness testimony, and upon careful consideration and review of the parties’ written submissions, documents contained in the court file, transcripts from court proceedings and relevant case law, the defendant’s motion is DENIED. BACKGROUND AND PROCEDURAL HISTORY The defendant was arrested on allegations of engaging in non-consensual sexual intercourse with the complainant who is related by blood. On September 23, 2016, following a jury trial in front of Justice Barbara Newman in Bronx County Supreme Court, Criminal Term, Part 24, the defendant was found guilty of one count of Rape in the First Degree under PL §130.35 (1). The jury was polled once the verdict was announced. Everyone reported that this was their verdict. The defendant, who had been at liberty on bail, was remanded and the case was adjourned to October 13, 2016, for sentencing. The instant motion to set aside verdict was filed off-calendar on October 12, 2016. The impetus for the motion came from defense counsel’s conversation with an alternate juror, Mr. T.P.,1 about 75 minutes after the verdict was rendered (Defense Aff, 4 [Oct. 12, 2016]). Mr. T.P. initiated contact with defense counsel to inform them that he had spoken to two seated jurors, Jurors #9 and #11, and had “grave misgivings about the manner in which th[e] deliberations were conducted” (id.). He told defense counsel that Ms. A.N., Juror #11, informed him that “among other things, the jury had discussed Mr. Smith’s decision not to testify in reaching their verdict, and that one juror had told the other jurors that she had supposedly seen Mr. Smith, who had been out on bail, jump the turnstile to enter the subway after the conclusion of the trial session on September 21, 2016″ (id.). According to Mr. T.P., and as relayed by defense counsel in their motion, another juror, believed to be Juror #9, informed Mr. T.P. that the prosecution failed to meet its burden to prove the charge beyond a reasonable doubt (id.). Ms. A.N. wrote an affidavit, which was attached to the defendant’s motion to set aside the verdict. The affidavit was dated September 28, 2016. Ms. A.N. echoed what Mr. T.P. stated, and averred that the following took place during the deliberations: a) The jurors openly discussed the fact that Mr. Smith chose not to testify as a factor in rendering their verdict; b) Several jurors simply refused to discuss the arguments that another juror and I raised during deliberations; c) Several jurors discussed their perceptions of Mr. Smith’s demeanor in the courtroom; and d) During the deliberations, a juror reported that she had seen Mr. Smith jump a turnstile to enter the subway after the trial had concluded for the day. (id. Exhibit A, 1-2). As with Mr. T.P., Ms. A.N. claimed that she was “deeply troubled by the fact that the jury was so biased, and so blatantly disregarded the Court’s instructions in its deliberations, and [she] regret[s] having ‘caved in’ and agreed to find Mr. Smith guilty” (id. at 3). She asked the court to overturn the verdict. There was no affidavit from Juror #9 or Mr. T.P. Based on the filing of this motion, the defendant was not sentenced and the case was adjourned for response and decision. The People’s opposition was filed on November 9, 2016. Relying on People v. De Lucia (20 NY2d 275 [1967]) and People v. Friedgood (58 NY2d 467 [1983]), inter alia, the People asserted that the defendant’s claim rested on unfounded allegations of one sitting juror which must not be used to undermine the jury’s verdict. Because Justice Newman was scheduled to retire at the end of 2016, the motion was referred to Justice Robert Torres, then Supervising Justice of Bronx County Supreme Court, Criminal Term. On December 2, 2016, Justice Torres summarily denied the defendant’s motion without a hearing. Defense requested leave to reargue, which was granted, and a motion to reargue was filed on February 24, 2017. Once again, it was denied by Justice Torres without a hearing on April 21, 2017. The defendant was sentenced to 18 years of incarceration and 20 years of post-release supervision as a violent predicate felony offender on May 19, 2017. A timely appeal was filed, and the appellate record was perfected on or about April 30, 2019. The case was heard by a First Department panel on November 14, 2019. One of the issues on appeal was the defendant’s motion to set aside the verdict. By the decision issued on December 12, 2019, the Appellate Division held, “Under all the circumstances of the case, the extraneous information introduced by a juror was inconsequential and did not require that the verdict be set aside. No evidentiary hearing was necessary, because defendant was not entitled to a new trial even assuming the truth of his allegations about the juror’s conduct” (People v. Smith, 178 AD3d 524, 524 [2019]). On November 19, 2020, the Court of Appeals issued a unanimous decision reversing the Appellate Division after concluding that “the motion court abused its discretion in denying the defendant’s CPL 330.30 (2) motion without first conducting a hearing” (35 NY3d 1117 [2020]). The matter was remitted to Supreme Court. Upon remission, the case was assigned to Justice Efrain Alvarado as Justice Torres had retired at the end of 2020. While the case was pending before Justice Alvarado, the parties held several status conferences in preparation for the hearing ordered by the Court of Appeals (hereinafter “330 hearing”). Furthermore, the defendant filed a motion seeking an order directing the Clerk of the Supreme Court to unseal the jury records pursuant to Judiciary Law §509 (a). The motion was granted by the Appellate Division on September 28, 2021. The Clerk produced the juror information on or about October 7, 2021. Sometime in late January 2022, the case was re-assigned to this Court following Justice Alvarado’s retirement. An informal conference was held with the Court’s attorney and attorneys from both sides on February 2, 2022. The procedural history, current posture and scheduling issues were reviewed. The case was placed on the Court’s calendar on February 24, 2022 for a “final pre-hearing conference” at the parties’ request. Thereafter, the case was adjourned to April 25, 2022 for a 330 hearing. Prior to April 25, the Court signed several subpoenas ad testificandum at the defendant’s request. On April 18, 2022, defense counsel filed a motion to set aside the verdict without a hearing. They argued that it was not feasible to hold a constitutionally meaningful 330 hearing because the jurors could not remember the alleged juror misconduct due to the passage of time. As such, they maintained that the Court could not determine whether the defendant’s right was affected by such misconduct. In the alternative, defense requested an evidentiary hearing regarding the practicability of holding a 330 hearing. Following oral opposition from the People on April 25, the Court ruled that the scope of the 330 hearing will be expanded to incorporate the defendant’s argument. Also, on April 25, 2022, Ms. A.N.’s absence was discussed. Defense counsel informed the Court that they last spoke to Ms. A.N. in November 2021 and she was reluctant to testify. Defense counsel detailed the measures that were taken to bring in the witness including obtaining a so-ordered subpoena from the Court, which was signed on April 18, 2022. Ultimately, according to defense counsel, Ms. A.N. cited work and childcare as reasons not to appear. Being that Ms. A.N. is an essential witness for their case, defense counsel proposed several options, which included allowing the witness to testify virtually, accepting her affidavit from 2016, or issuing a material witness order. Alternatively, they asked the Court to speak to Ms. A.N. to appear voluntarily as directed by the subpoena. After hearing from both sides, the Court indicated its willingness to sign a material witness order. At the defendant’s request, however, the Court instead signed an order to show cause for the following day and informed the parties that a material witness order would follow if the witness did not show up. Nine witnesses testified on April 25, 2022. Three of the People’s witnesses were taken out of turn with the consent of both parties for the witnesses’ convenience. Ms. A.N. appeared and gave testimony on April 26, 2022. Although Mr. Smith was not produced by the State Department of Corrections on the day of Ms. A.N.’s testimony, he waived the right to be present after consulting with his attorneys given the difficulty with bringing in the witness. Mr. Smith was connected by counsel’s cell phone and was able to hear Ms. A.N.’s testimony telephonically. The Court heard from two additional witnesses on April 28 and May 23, 2022. After an oral argument from both sides, the case was adjourned for decision. FINDINGS OF FACT The Court heard from a total of twelve jurors, which included all of the sitting jurors except Juror # 1, who currently lives in the Dominican Republic, and Alternate Juror #1. Both sides agreed that these witnesses are unavailable and would likely provide cumulative testimony to the testifying jurors. The Court agrees. Based on the witnesses’ testimony, the Court makes the following findings of fact. 1. D.M. (Juror # 2): Mr. D.M. testified as the People’s witness on April 25, 2022. As noted previously, his testimony was taken out of turn on consent of both parties. The Court finds his testimony to be credible. Mr. D.M. testified that he remembers serving as a juror in this case and deliberating. Although he remembered it to be a rape case, he did not recall more specific details from the case. From what he could remember, Mr. D.M. testified that the jury deliberations were quiet and respectful, and everyone had an opportunity to speak. Mr. D.M.’s recollections of the jury deliberation did not involve any juror mentioning that they observed the defendant at a subway station and jumping a turnstile, or discussing with others about the defendant’s demeanor and appearance during the trial. Mr. D.M. testified that he remembers thinking that the defendant should have testified, but kept it to himself and did not discuss it with other jurors. He stated that the jury never discussed the fact that the defendant did not testify. Mr. D.M. further stated that he remembers following the judge’s instruction that the jury were not to consider the fact that the defendant did not testify. On cross examination, Mr. D.M. testified that he remembers the readback of the nurse’s testimony but could not remember how long it was. He also could not remember if there were any other readbacks. 2. J.G. (Juror # 3): Ms. J.G. testified as a defense witness on May 23, 2022.2 She remembers serving as a juror and participating in the jury deliberations in this case. The Court finds Ms. J.G. to be credible. Ms. J.G. stated that a conversation took place during the jury deliberations about seeing Mr. Smith outside the courtroom but could not remember who initiated that conversation or participated in it. Ms. J.G. testified that a juror said that they saw Mr. Smith jumping over a turnstile at the train station. However, the jury “didn’t pay no mind to it.” Ms. J.G. testified that she was first contacted by defense counsel in November 2021. She remembers the trial generally but cannot remember specific details. Ms. J.G. said that the deliberating jurors were calm, friendly towards each other, and “agreed to disagree” when they had concerns about the case. On cross examination, she stated that all of the jurors got to speak about the facts and evidence, and they talked about “everything.” According to Ms. J.G., the jury followed the judge’s instructions and the law. Every juror voted to convict the defendant of the top charge after a thorough and careful consideration, and she stated that she was confident in the verdict. 3. M.S. (Juror # 4): Ms. M.S. testified credibly as a defense witness on April 25, 2022.3 She stated that she remembers participating in the jury deliberations. According to Ms. M.S., all of the jurors discussed the case freely and had an opportunity to give their individual opinion in a roundtable discussion. Although she could not recall the specifics, she stated that everyone participated, and they deliberated peacefully. She further stated that nobody spoke harshly, and the jury had an opportunity to discuss their disagreements in a respectful manner. Ms. M.S. stated that she could not remember whether another juror said that they saw the defendant outside of the courtroom. Ms. M.S. also testified that she remembers the judge’s instructions and following them, as did the other jurors. Among the judge’s instructions was the admonition that they could not consider nor draw any negative inferences from the defendant’s decision not to testify. She stated that she did not consider it during her deliberation. 4. M.J. (Juror # 5): Mr. M.J. testified as a defense witness on April 28, 2022.4 The Court finds his testimony to be credible. Mr. M.J. stated that the jury’s overall demeanor was calm. He does not remember whether a juror stated that they saw the defendant outside the courtroom during the trial. He testified that the jury did not consider the fact that the defendant did not testify during its deliberations. Mr. M.J. remembers receiving instructions from the judge and following them. Finally, the witness did not hear any juror talk about the defendant’s appearance or behavior during the deliberations. 5. R.F. (Juror # 6): Mr. R.F. testified as a defense witness under subpoena on April 25, 2022.5 The Court finds Mr. R.F. to be credible. Mr. R.F. stated that he remembers that this was a rape case. He also recalls deliberating and reaching a guilty verdict. However, he could not remember specific details about the case. Mr. R.F. testified that there were no quarrels among the jurors and that the deliberations were peaceful. He stated that they never talked about the defendant not testifying or his actions outside the courtroom. He believed that all of the jurors went around the room and had a fair opportunity to speak during the deliberations. 6. E.B. (Juror # 7): Mr. E.B. testified credibly as a defense witness on April 25, 2022.6 He remembers participating in the deliberations even though he lacked specific recollections about what was discussed. Mr. E.B. stated that he participated in a separate unrelated matter two years prior to sitting as a juror this case, and could not remember the specifics from that case, either. He believed the case to be a child rape case, and testified that nothing stuck out in his mind as being unusual. Mr. E.B. stated that the deliberations were conducted in a peaceful manner without any confrontations or inappropriate action by any jurors. He further testified that the jury followed the judge’s instructions and applied them to the facts of the case. 7. B.D. (Juror # 8): Ms. B.D. testified on April 25, 2022 as a defense witness.7 The Court finds Ms. B.D. to be credible. She testified that she remembers participating in the deliberations but could not remember the specifics of what was discussed. Ms. B.D. could not recall any juror saying that they saw the defendant outside the courthouse. On cross examination, she testified that she did not remember anything unusual from the deliberations. She stated that the jury followed the court’s instructions. 8. J.R. (Juror # 9): Mr. J.R. testified as the People’s witness on April 25, 2022. His testimony was taken out of turn on consent of the parties. The Court finds his testimony to be credible. Mr. J.R. testified that he remembers sitting as a juror and participating in the deliberations in September of 2016. He also recalled that it was a rape case. He stated that jurors talked about the facts of the case and whether the victim was telling the truth or not. Mr. J.R. testified that the jury decided that they believed what the complainant said. Nobody was arguing during the deliberations even though they did not come to a decision right away, according to the witness. The jury wanted to make sure that the “right” verdict was reached and the case was discussed multiple times before reaching a verdict. All jurors had an opportunity to voice their opinion even though he could not recall if everyone spoke. Mr. J.R. also remembered that a readback of a sex crimes social worker’s testimony was requested and given. Mr. J.R. stated that he did not hear any juror talk about observing the defendant at the subway station jumping over a turnstile, defendant’s appearance or demeanor during the trial, or his decision not to testify. Mr. J.R. testified that he followed the law and the judge’s instructions. 9. J.G. (Juror # 10): Ms. J.G. testified as the People’s witness on April 25, 2022. She remembers serving as a juror and deliberating. It was her first time as a juror. The Court finds her testimony to be credible. Ms. J.G. testified that deliberations were “pretty respectful.” The jury first discussed whether they thought the defendant was guilty or not. Two people were not sure. Then, the jury further discussed the details from the case to determine why the two jurors did not agree with the rest of the jury. Both of the disagreeing jurors were able to openly discuss their reasons for having a doubt, according to the witness. Ms. J.G. stated that the jury discussed the law and judge’s instructions. No one discussed seeing the defendant jump a turnstile during the deliberations. Ms. J.G. also said that she did not personally see the defendant at a subway station. Ms. J.G. stated that jurors discussed the defendant’s appearance and demeanor such as his reactions and noises he was making. However, she testified that they knew not to consider such observation in their decision. Ms. J.G. also stated that jurors commented on how the defendant did not testify at trial. However, the jury followed the law and the judge’s instructions, and did not consider the defendant’s decision not to testify, according to the witness. Ms. J.G. did not, either. On cross examination, Ms. J.G. stated that she could not remember how she commuted to the courthouse during the trial. It was more than likely that she took the D train and exited at the Yankee Stadium stop. She further noted that after court, she would have gone to pick up her daughter by riding the D train again. Ms. J.G. thought that the jury deliberated for one day and did not remember how long the readback was. 10. A.N. (Juror # 11): Ms. A.N. testified as a defense witness on April 26, 2022. She testified that she has served on a jury only once in her life and vaguely remembers the day that the jury reached a verdict in this case. On cross examination, the People introduced Ms. A.N.’s affidavit as evidence, which was admitted without objection from the defense. There were several inconsistencies with Ms. A.N.’s testimony and the written affidavit from 2016; as such, the Court finds Ms. A.N.’s testimony to be partially credible. The witness testified at the hearing that some jurors were discussing on the last day of the deliberations how Mr. Smith was observed to be jumping a turnstile at the subway station. Ms. A.N. stated, “Basically, anyone who was taking the train at that time, they stated that he, as well as someone else, I am not sure who this person was, hopped the turnstile, and, in a nutshell, they were intimidated by him” (tr at 110-111 [Apr. 26, 2022]). Ms. A.N. estimated that about four to five jurors saw the defendant taking the subway and they “interjected” and “agreed” when a juror stated that she saw the defendant jump the turnstile (id. at 122). When asked whether Ms. A.N. spoke to Mr. T.P. about this discussion, she testified, “No, we didn’t discuss that portion because he was present for it” (id. at 113). In comparison, Ms. A.N. provided in her affidavit, “At one point during the deliberation, Juror #10, Ms. J.G., told the rest of the jury that after deliberations ended on Thursday, September 22, she was entering the D train station at 161st Street when she saw both Mr. Smith and the gentleman who sat in the audience for most of the trial jump the turnstile and enter the subway system without paying their fares” (Affidavit at 3). Ms. A.N. further stated, “The underlying assumption was that someone who would willingly disobey the law for his own benefit would be more likely to have committed another crime” (id.). During her testimony, Ms. A.N. stated that the reason why Ms. J.G.’s name was mentioned without any reference to the other four jurors was because she was the person who brought up the topic (tr at 122). When considering Ms. A.N.’ statements in conjunction with Ms. J.G. (Juror #10)’s testimony, the Court credits that a discussion took place among some number of jurors about observing the defendant jumping the turnstile. Moreover, as will be discussed below, Mr. T.P. corroborated Ms. A.N.’s testimony that the jury discussed observing the defendant jump the turnstile in his presence. Therefore, the Court further concludes that the discussion likely took place in the afternoon after the jury deliberations ended for the day and possibly once more during the following day’s deliberation. Based on the close temporal proximity of Ms. A.N.’s affidavit to when the comment was made, the Court determines that Ms. J.G. was likely the juror who brought up the defendant’s conduct at the train station. At the same time, the Court does not find credible the witness’ testimony about the effect that such discussion had on other jurors because it is speculative and contrary to the evidence at the hearing. Ms. A.N. further testified that after the verdict was reached, an alternate juror reached out to her and asked how the jury could come to such a verdict. She believed that other jurors were biased and had pre-conceived notions about the defendant. The witness testified that she spoke to defense attorneys, went into their office and wrote and signed the affidavit. Her testimony about having a conversation with an alternate juror and preparing an affidavit with defense attorneys is credible. The Court also credits her testimony that she spoke to the alternate juror about how some jurors had pre-conceived notion to be true without finding the basis of that claim to be credible. On cross examination, Ms. A.N. testified that she remembers serving as a juror for approximately sixteen days, voting to convict the defendant, being in the courtroom when the verdict was announced and being polled. She was “annoyed because [she] was in a room full of jurors who had preconceived notions and they had already made up their minds” (tr at 125). Ms. A.N. stated that she raised her concerns multiple times, but they were ignored during the deliberations. She also stated that jurors commented about the defendant’s appearance and demeanor, but did not identify who or any additional details. Ms. A.N. acknowledged that the evidence was reviewed by the jury and the verdict was reached after a deliberative process. The Court also credits her testimony about how the other jurors did not accept her arguments to be true from Ms. A.N.’s perspective. Finally, in her affidavit, Ms. A.N. wrote, “once the deliberations began, several jurors repeatedly stated that if Mr. Smith had had a valid story to tell, he would have told it, and that they would hold against him his supposed failure to counter the complainant’s version of what happened in her apartment on December 20, 2015″ (Affidavit at 2). She also wrote that ” [a]nother juror — Juror #9 — and I repeatedly argued that this was both unfair and in violation of the law as Justice Newman had given it to us, but the other jurors would not listen” (id.). When Ms. A.N. was asked by the prosecution about this statement, she only offered that she has no recollection about it anymore (tr at 131-132). When considering the fact that Ms. A.N. had sufficient recollection about the other issues listed in her affidavit such as refusal to consider defendant’s arguments, discussion of defendant’s demeanor and appearance, and discussion of an alleged theft of services by defendant during the trial (see Affidavit 2-3), the Court does not find credible Ms. A.N.’s claim that she has no memory about the discussion about the defendant not testifying. 11. Y.E. (Juror # 12): Ms. Y.E. testified on April 25, 2022, as a defense witness.8 She testified that she has been a juror on two cases in the past, but she did not remember sitting on this case. She said the memory was vague and it may have involved someone raping a family member. She did not remember the process, evidence or testimony from the case, if she missed work or participated in the jury deliberations. On cross examination by the People, she was shown a jury note from the trial. Ms. Y.E. acknowledged that it was her handwriting, but it did not refresh her recollection about the trial. The Court credits her testimony that she has no independent recollection of the trial or the deliberations. 12. T.P. (Alternate Juror # 2): Defense called Mr. T.P. on April 25, 2022. He testified that he was an alternate juror. He was present for the entire trial but did not participate in the jury deliberations. He could not remember whether he was separated from the jury or excused from the case when the jury received the case to deliberate. He could not remember whether he was present in the courtroom when the verdict was announced on September 23, 2016. Mr. T.P. believed that he heard about the verdict from another juror, either Ms. A.N. or someone else. The Court finds Mr. T.P.’s testimony to be mostly credible about the conversation that he had with Ms. A.N. and what steps they took before Ms. A.N. wrote out an affidavit for the defense. However, Mr. T.P.’s testimony is of limited use in this hearing because the majority of what he recounted for the Court was hearsay from Ms. A.N. Mr. T.P. testified that he remembers talking to Ms. A.N. after the jury verdict. He may have exchanged phone numbers with Ms. A.N. during the trial or gotten Ms. A.N.’s number from a court officer. Since court officers cannot to give out a juror’s contact information, the Court concludes that Mr. T.P. obtained Ms. A.N.’s number from her during the trial. Although Mr. T.P. could not remember everything that he discussed with Ms. A.N. during their conversation after the verdict, he remembers that Ms. A.N. said, in sum and substance, “some other women jurors were talking about their feelings [rather] than the judge’s instructions.” Mr. T.P. stated that he was also present when female jurors were expressing their personal feelings about the case before the deliberations began, and he likewise felt that they had reached a decision before they began the deliberations. Mr. T.P. did not provide more information about what the jury discussion was about, who was involved, or why he believed that they had “made up their mind.” Certainly, what Mr. T.P. heard from Ms. A.N. is hearsay. The Court credits his testimony to the extent that some discussions about the case took place in Mr. T.P.’s presence before the jury deliberations began. However, without any further elaboration from the witness, the Court finds that Mr. T.P.’s characterization that some of the jurors had “made up their mind” to be baseless. According to Mr. T.P., Ms. A.N. also told him that one of the jurors said that he or she knew the defendant, but the individual did not “know-know him.” Mr. T.P. remembers saying to Ms. A.N. that such conduct must be reported to the judge. This information is uncorroborated by Ms. A.N. or any other witness. As such, the Court discredits it. Mr. T.P. testified that Ms. A.N. also told him that one juror saw the defendant jump a turnstile. Mr. T.P. stated that he may have been present as well when a female juror mentioned that she observed the defendant jumping over a turnstile. Based on the corroborating testimony by Ms. A.N. and Ms. J.G., the Court finds this portion of the testimony to be credible. Ms. A.N. stated to Mr. T.P. that one man was “very aggressive” during the deliberations and “intimidating” the others to go along with him. On cross examination, however, Mr. T.P. stated that he did not personally witness the aggressive behavior as it took place during the deliberations. He also testified that he did not know the juror’s name. This portion of Mr. T.P.’s testimony as well as what Ms. A.N. told Mr. T.P. is credible. However, the Court does not find the underlying hearsay statement to be credible. Finally, based on Mr. T.P.’s testimony and papers contained in the court file, the Court is convinced that he contacted defense lawyers after his conversation with Ms. A.N. LEGAL DISCUSSION Under CPL §330.30 (2), the court may set aside or modify the verdict if “improper conduct by a juror…may have affected a substantial right of the defendant and which was not known to the defendant prior to the rendition of the verdict” (id.). In a 330 hearing, ” [t]he trial court is invested with discretion and posttrial fact-finding powers to ascertain and determine whether the activity during deliberations constituted misconduct and whether the verdict should be set aside and a new trial ordered” (People v. Maragh, 94 NY2d 569, 574 [2000]). At the same time, the Court is reminded that the power to grant an order for a new trial is purely statutory and is “far more limited than that of an intermediate appellate court” (People v. Carter, 63 NY2d 530 [1984]; see also People v. Schmidt, 216 NY 324, 328 [1915] ["The power to order a new trial in criminal causes is created and measured by the statute"]; People v. Thompson, 177 Misc 2d 803 [Sup Ct, Kings County 1998]). It is well-settled by now that “jurors may not impeach their own duly rendered verdict by statements or testimony averring their own misconduct within or without the juryroom” (People v. DeLucia, 15 NY2d 294, 295 [1965]). Moreover, “not every misstep by a juror rises to the inherently prejudicial level at which reversal is required automatically” (People v. Brown, 48 NY2d 388, 394 [1979]). As a rule of thumb, juror misconduct constitutes reversible error where “(1) jurors conduct[ ] personal specialized assessments not within the common ken of juror experience and knowledge (2) concerning a material issue in the case, and (3) communicat[e] that expert opinion to the rest of the jury panel with the force of private, untested truth as though it were evidence” (Maragh, supra, at 574). Thus, juror misconduct has been found when jurors conducted an unauthorized investigation by themselves like visiting crime scenes, improperly conducting reenactments of incidents, or performing ‘tests’ to verify testimony at issue (id.). Because juror misconduct can take many forms, the alleged misconduct and the likelihood that prejudice would be engendered must be analyzed on a case-by-case basis (id. at 573-574). The burden to establish elements for a new trial is on the defendant (CPL §330.40 [2] [g]). 1. Defendant’s Motion to Set Aside Verdict Without a 330 Hearing As a threshold matter, the defendant argues that his motion to set aside verdict must be summarily granted without a 330 hearing. The defendant asserts that a new trial must be ordered because of the inability to examine the alleged juror misconduct in a thorough, reliable and accurate manner due to the passage of time. Although the defendant acknowledges that there is no case directly on point in New York, he asks the Court to adopt the holdings of assorted federal circuit and state appellate court cases that have determined that reconvening the jury years later to reconstruct what transpired during the jury deliberation is not a constitutionally feasible remedy (see e.g. United States v. Resko, 3 F3d 684 [3d Cir 1993]; United States v. Rhodes, 556 F2d 599 [1st Cir 1977]; State v. Loftin, 191 NJ 172 [2007]; James v. State, 912 So2d 940 [Miss 2005]). Despite the lack of relevant New York precedent, the defendant analogizes the current situation to reconstructing the record of jury selection after successful appeal under Batson v. Kentucky (476 US 79 [1986]), and when courts retrospectively determine a defendant’s competency to stand trial. In both situations, the defendant asserts, whether the proceeding may be successfully reconstructed depends on several factors such as the passage of time, availability of contemporaneous notes, availability and recollection of the trial prosecutor and trial judge, and the overall state of the record. The defendant maintains that these features are either non-existent or unreliable in the instant case to such a degree that conducting a 330 hearing does not provide a meaningful protection of his due process rights. The People oppose preliminarily by arguing that the Court is not at liberty to expand the scope of the hearing on a remittitur. They also maintain that the defendant’s motion must be denied because a constitutionally meaningful hearing could be held. Turning first to the People’s claim that the Court may not expand the scope of the hearing on a remittitur, Rules of Practice 500.19 (b) provides that “[t]he court of original instance or the court to which the case is remitted issues any order to effect the adjudication in this Court’s remittitur, including an award of costs” (id. [emphasis added]). This provision permits the Court to issue any order as it deems necessary to effectuate the decision by the Court of Appeals. Because the defendant requests a summary vacatur of his conviction without a 330 hearing specifically demanded by the Court of Appeals, it is necessary to incorporate the defendant’s motion in the 330 hearing. The defendant’s argument for summary vacatur appears to be novel. The Court has also conducted independent research and was unable to find, like the defendant, any case in New York that addressed this issue. In the Court’s view, the absence of binding case law weighs against the defendant because, as previously mentioned, the trial court’s power to set aside verdict is purely statutory, and must be used only in very narrow set of circumstances enumerated in the statute (Carter, supra; Schmidt, supra; Thompson, supra). Another factor against the defendant is the express mandate by the Court of Appeals to this Court to conduct a 330 hearing, which was a remedy requested by the defendant on appeal. The defendant’s motion is also denied as moot because a constitutionally meaningful hearing was held. Throughout this hearing, the Court had an opportunity to observe and examine all but one of the deliberating jurors who gave testimony under oath. The Court was able to assess their credibility and memory of the jury deliberations. Although many did not remember every detail of what transpired during the deliberations, they had sufficient recollection about all pertinent information including, but not limited to, the manner in which the deliberations were conducted, whether they followed the judge’s instructions, and if any discussions about the defendant’s demeanor, appearance, or his illegal conduct of jumping a subway turnstile improperly affected their ability to deliberate in a fair and impartial manner. Further alleviating any concerns about fading human memory as in some of the cases cited by the defense, Ms. A.N.’s affidavit lays out specific areas that required the Court’s attention. For example, in United States v. Resko, a case cited by the defendant, a federal district court was informed mid-trial that the jury was discussing facts of the case before they were allowed to deliberate. Instead of conducting an individualized voir dire of the sitting jurors, the court gave a written questionnaire and asked the jurors to indicate whether they had been discussing the case and if so, whether they formed an opinion about the guilt or non-guilt of the defendants (supra, at 688). On appeal, the Third Circuit Court of Appeals found that the questionnaire “raised more questions than it answered” because there was no record of what was discussed among the jurors (id. at 690-691). Without that information, the court held, it could not determine whether the jury discussed inconsequential facts or not, which required a new trial. That is not what we have in this case. Ms. A.N.’s affidavit described the alleged misconduct with sufficient clarity. The parties were able to ask questions about them during the hearing. The answers given by the witnesses, with the exception of Ms. Y.E. who could not remember sitting on the jury, demonstrated that they remembered pertinent facts about the deliberations, especially on the questions raised by Ms. A.N.’s affidavit. Accordingly, the defendant’s motion to summarily set aside the verdict without a hearing is denied.9 2. Defendant Failed to Demonstrate that the Jurors Engaged in Improper Conduct and Their Conduct Affected a Substantial Right In the case at bar, the defendant argues that the jury improperly considered evidence outside the record as well as his decision not to testify. Specifically, he maintains that the jury (1) unfairly and improperly considered the defendant’s appearance and demeanor during trial, (2) improperly considered an observation by a juror of his jumping a turnstile at a subway station, (3) refused to engage in a full and frank deliberations and (4) illegally considered the defendant’s decision not to testify. He contends that such misconduct by the jury, individually and in the aggregate, affected his right to receive a fair trial. Each claim is discussed seriatim. a. Defendant Failed to Show that the Jury Improperly Considered His Appearance and Demeanor During Trial Which Affected A Substantial Right The defendant argues that verdict must be set aside because the jury inappropriately considered his appearance and demeanor which may have affected a substantial right. He relies on Ms. A.N.’s sworn allegations that “several jurors” improperly commented about Mr. Smith’s manner and behavior during the trial including “grimacing and reacting to the testimony of the complainant” and how he had shaved his head (Defense Motions [Oct. 12, 2016], Exhibit A at 3). Ms. A.N. did not provide further details in the affidavit or during her testimony at the hearing about how the defendant’s appearance and demeanor unfairly swayed her or other jurors’ deliberation to find the defendant guilty. The only other witness who testified about the defendant’s appearance and demeanor was Ms. J.G (Juror #10). Ms. J.G. testified that jurors discussed the defendant’s reactions and noises that he made during trial. However, she further stated that the jurors knew not to factor those into their decision, and they were not considered by the jury. The defendant did not establish that juror misconduct occurred and that the conduct may have affected a substantial right (CPL §330.30 [2]). The Court finds credible that some discussions about the defendant’s appearance and demeanor occurred during the jury deliberations. However, that could hardly be characterized as misconduct (cf. People v. Browne, 307 AD2d 645, 646 [3d Dept 2003] [a juror's statement that it would be "a good thing to get another drug dealer off the street" insufficient to show prejudice]). Apart from the general prohibition against applying one’s prejudice, bias, or emotions,10 there is no rule that the jury may not consider the defendant’s appearance and demeanor that he exhibits during the trial. Quite the contrary, evidence includes what the jury witnesses in the courtroom (see e.g. People v. Johnson, 171AD3d 1089 [2d Dept 2019] [great deference must be given to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor]). Jurors are not required to “check their life experiences at the courtroom door” (People v. Arnold, 96 NY2d 358, 366 [2001]; Maragh, supra, at 574 ["In assessing whether a particular activity rises to the level of misconduct, our calculus includes an appreciation that the complained-of conduct must be something more than an application of everyday experience, for that is precisely what peer jurors are instructed and expected to use in their assessment of evidence"]). The jurors’ discussion of the defendant’s demeanor and appearance was nothing unusual, and not prohibited. Moreover, even if this activity arguably rises to the level of jury misconduct, there was no evidence that it affected the defendant’s right to have a fair trial (see e.g. People v. Brooks, 134 AD3d 574 [1st Dept 2015] [without a showing of prejudice to a substantial right, proof of juror misconduct does not entitle the defendant to a new trial]). Ms. A.N. did not offer any facts about how the jurors’ discussion of the defendant’s appearance and demeanor affected the way in which they deliberated or how they came to the verdict. Ms. J.G. (Juror #10) denied that this discussion had an effect on the verdict. As such, the defendant’s motion to set aside verdict on the grounds that the jurors improperly considered his appearance and demeanor must be denied (see e.g. People v. Marsden, 130 AD3d 945 [2d Dept 2015]; People v. Johnson, 54 AD3d 636 [1st Dept 2008]). b. Defendant Failed to Show that the Jury Improperly Considered Alleged Extraneous Criminal Conduct The defendant further argues that the verdict must be set aside because the jury improperly considered a comment by a juror that she observed him to be jumping a turnstile at a subway station. Here, Ms. A.N.’s affidavit provided that Ms. J.G. (Juror #10) told the rest of the jury that she saw Mr. Smith and another gentleman enter the subway system without paying their fares (Defense Motions [Oct. 12, 2016], Exhibit A at 3). According to Ms. A.N., “[t]he underlying assumption was that someone who would willingly disobey the law for his own benefit would be more likely to have committed another crime” (id.). During her testimony at the hearing, Ms. A.N. claimed that at least five jurors had observed the defendant using the subway system illegally, and they felt nervous and intimated by the defendant because of this occurrence. The defendant relies on People v. Santana (199 AD3d 491 [2021]). In Santana, the jury found that the defendant was guilty of Attempted Robbery in the First Degree by acting in concert with co-defendant Brownie Lopez. During defense counsel’s conversation with jurors after the verdict, Juror #12 stated that he and other jurors learned that codefendant Lopez had a “violent past” (id. at 492). Specifically, he and other jurors discovered, and discussed during trial, a YouTube video showing Lopez punching a man, which ultimately caused his death (id.). When counsel asked Juror #12 whether the video led him to vote in favor of guilt, the juror stated, “It certainly didn’t help” (id.). Following a five-day hearing, the trial court “found that the Lopez video did not taint jury deliberations because the jurors were able to successfully put aside any prejudice created through the introduction of information about Lopez’s criminal past” (id. at 495). On appeal, the Appellate Division reversed, holding that the totality of the circumstances supports the likelihood that prejudice was engendered by the jurors’ viewing of the video. The court provided, “The video created a substantial risk of prejudicing the verdict as it permitted jurors to perceive the codefendant as having propensity for violence, and then to perceive that same propensity to apply to defendant through a guilt-by-association chain of reasoning” (id. at 496). Likewise, the defendant contends, the jurors’ discussion of seeing him jump a turnstile constituted an outside influence that engendered a substantial risk of influencing the verdict against him. Based on the testimony adduced at the hearing, the Court is persuaded that a discussion took place, at least among some members of the jury, about seeing the defendant jump a turnstile at a subway station. Contrary to Ms. A.N.’s assertions, Ms. J.G. (Juror #10) testified that even though she would have likely taken the subway during the trial, she did not personally see the defendant jumping a turnstile. She also did not recall any discussion during the jury deliberation about the defendant’s alleged criminal conduct. However, there were two other witnesses who testified about the defendant’s alleged theft of services. Ms. J.G. (Juror #3) testified that a juror mentioned during the deliberation that they observed Mr. Smith jump a turnstile at the train station, but the jury “didn’t pay no mind to it.” Mr. T.P., an alternate juror, testified that a female juror mentioned seeing the defendant jumping a turnstile in his presence. Even though these discussions took place, they did not constitute juror misconduct. In considering “juror misconduct,” the Court looks for actual or implied bias (People v. McGregor, 179 AD3d 26, 30 [1st Dept 2019]). “Actual bias” requires “proof of a ‘state of mind’ that is ‘likely’ to preclude a juror from rendering an impartial verdict” (id. [internal citation omitted]; see also CPL §270.20 [1] [b]). “Implied bias” exists where a juror “bears some…relationship to [defendant, witness, prosecution] of such nature that it is likely to preclude [the juror] from rendering an impartial verdict” (id.; see also CPL §270.20 [1] [c]). Here, there was neither during the deliberations. Unlike Santana, which involved watching a video of the co-defendant committing a violent offense, the instant case involves uncorroborated hearsay of an observation of fare-beat, a crime that has arguably been associated with poverty more than anything (see e.g. Harold Stolper, Policing Poverty at the Turnstile, Community Service Society, Sept 27, 2019, available at https://www.cssny.org/news/entry/policing-poverty-at-the-turnstile ["More than 2 out of 5 working-age New York City adults below the federal poverty level say they're often unable to afford subway and bus fares"]). There is no resemblance between the crime on trial and the unrelated out-of-court criminal conduct that would lead the jury to convict based on propensity. There is no “implied bias” because the defendant does not allege that any of the jurors bears some relationship to the defendant, witness or the prosecution (McGregor, supra, at 30; see also CPL §270.20 [1] [c]). In addition, Ms. A.N.’s conclusory and speculative remark that the statement in question would have propelled the jury to convict the defendant by characterizing him as a person who committed the rape in question because he would “willingly disobey the law for his own benefit” is incredible. Initially, it is worth noting that Ms. A.N. stated that the comment was made after the deliberations ended on Thursday, which was corroborated by Mr. T.P.’s testimony that he was present when the comment was made.11 It is fair to conclude that the comment in question was made when the jury was not deliberating and the speaker had no intention to affect the ongoing deliberations. More importantly, Ms. A.N. did not say, either in her affidavit or during her testimony, how the comment affected jury’s ability to evaluate the evidence in a fair and unbiased manner, including herself. Quite the contrary, Ms. J.G. (Juror #3), the only other deliberating juror who testified about this conversation, specifically stated that the jury “didn’t pay no mind to it” (People v. McDonald, 40 AD3d 1125 [2d Dept 2007] [Defendant failed to establish that any substantial right was prejudiced by a juror's allegedly improper comments; one juror testified that her opinion was not influenced by another juror's comments on defendant's guilt]; People v. Albert, 206 AD2d 320, 323 [1st Dept 1995]; People v. Mann, 125 AD2d 711 [2d Dept 1986]). Therefore, the defendant failed to establish that the comment in question had such a debilitating and prejudicial effect on the deliberating jurors that it was likely to preclude them from rendering an impartial verdict (see also Maragh, supra, at 576 [juror's personal mental processes and credibility assessments are not subject to post-verdict impeachment]). Accordingly, this branch of the motion is denied (see e.g. People v. Hartle, 159 AD3d 1149 [3d Dept 2018] [jurors' discussion of the defendant's prior rape prosecution did not warrant the verdict to be set aside in a rape case where there was no evidence that the jury's deliberative process was affected by the alleged conversation]); People v. Bradley, 258 AD2d 936 [4th Dept 1999] [trial court did not abuse discretion in summarily denying the defendant's motion to set aside the verdict "where the motion was supported only by a juror's hearsay account of another juror's statements during deliberations"]; see also People v. Loliscio, 187 AD2d 172 [2d Dept 1993] [trial court's denial of the defendant's motion to set aside verdict based on statement by four jurors that they heard rumors concerning murder defendant was not in error when each affirmed that rumors played no part in deliberations]). c. Defendant Failed to Demonstrate Jury Bias The defendant challenges the validity of the verdict by emphasizing the jury was unfairly biased. Ms. A.N. alleged in her affidavit that “[t]he testimony of the complaining witness contained numerous inconsistencies and, in my view and that of at least one other juror, was simply not credible” (Defense Motions [Oct. 12, 2016], Exhibit A at 2). Although she “repeatedly attempted to discuss questions that arose out of the cross-examination of the complainant, Ms. Jones, and/or [arguments made] by the defense during its closing argument,” her efforts were ignored (id. at 2-3). The other juror whose view was ignored is not named in the affidavit. Neither party sought to explore the issue further at the hearing. Ms. A.N. also reiterated her feeling that the jurors were “biased” and had “pre-conceived notions” during her testimony. Ms. J.G. (Juror #10) testified that there were two jurors who were unsure about the defendant’s guilt. Ms. J.G.’s testimony seems to corroborate Ms. A.N.’s assertion that she and another juror wanted to discuss questions about the complainant’s credibility and/or arguments by defense counsel. However, unlike Ms. A.N.’s allegations, Ms. J.G. testified that these two jurors were given an opportunity to talk about why they disagreed, and the jury spent time discussing those points. Mr. J.R., who is believed by Mr. T.P. to have been the other dissatisfied juror, stated that the jurors talked about the case several times because they wanted to reach the “right” verdict. He remembered that the jury struggled with the complainant’s testimony and requested a readback of a witness. He further testified that nobody argued during the deliberations, and everyone had an opportunity to voice their opinion. Similarly, other jurors testified that the deliberations were conducted in a peaceful and respectful manner and each one had an opportunity to speak. For instance, Ms. J.G. (Juror #3) stated that the jury “agreed to disagree” and talked about “everything.” Ms. M.S. testified that the jury had a free roundtable discussion. There was no juror misconduct. It is possible, as it is a commonplace occurrence, that some jurors may have engaged in conduct that seemed “aggressive” or “intimidating” during the deliberations. However, juror pressure is “indigenous to the jury system” (United States v. Stoppelman, 406 F2d 127, 133 [1st Cir 1969]). Intimidation, arguments, dissatisfaction, disapproval, differences of opinion and harsh words are all forms of exchanges and interchanges that occur among jurors in the deliberation process (People v. Pizarro, 24 AD3d 309 [2005]). It is not an easy process — especially when there are twelve different humans, each with different opinions, experiences, education levels, values, biases, prejudices and considerations who, when placed together inside a room to determine the strengths and weaknesses of the case presented before them will all have varying opinions of their perceptions of the evidence presented to them (People v. Davis, 86 AD3d 59 [2d Dept 2011]). Some may even feel that their opinions are not being heard. However, were a court to take action based solely on these concerns, the jury deliberation process would become a sham and we can never have finality or closure in a trial. The fact that the jury was not predisposed to convict the defendant is further corroborated by the trial record. The jury requested a readback from Geretha Diamond, a psychiatric nurse practitioner who testified about how the DNA evidence was collected, as well as the complainant’s testimony from direct examination (Jury Note #1). Moreover, in the same jury note, they requested “DNA — clarification of donor A + B in Anus” (id.). Although there was no testimony about Donor B during the case (tr at A1169-A1170), this is an indication that the jury was actively engaged in an analysis of the evidence in the case and when disagreements arose, they sought clarification from the court record. Furthermore, there are mechanisms in place for juror to raise their concerns with the court during the trial (People v. Buford, 69 NY2d 290 [1987]). For example, when the jury is polled individually in open court to see if each person voluntarily agrees with the verdict, the dissatisfied juror has another opportunity to raise her distress, discord, intimidation and unfairness of the jury deliberation process with the court. Additionally, an uncomfortable juror can even relay their concerns privately to a court officer or to the jury foreperson who can then “send a note” to the judge notifying her of the situation in writing. Here, neither Ms. A.N. nor the unnamed and unidentified juror stated that they felt coerced to vote to convict. Ms. A.N. reported on the record that it was her verdict when she was polled. As such, the Court finds no merit in the defendant’s argument (see e.g. People v. Tillman, 57 AD3d 1021 [3d Dept 2008] [it was not an error by the trial court to summarily deny the defendant's motion to set aside the verdict where a juror indicated that "he felt pressure from other jurors and, although he acknowledged that he had voted to convict and affirmed that vote when the jury was polled in open court, he later had doubts about his vote, which he characterized as being made in a 'moment of weakness'" since it did not raise any question of outside influence]; People v. Grant, 43 AD3d 800 [1st Dept 2007]). An attempt by a dissatisfied juror to impeach the verdict with regard to the jury’s deliberative process does not form a valid ground to set aside a duly-obtained verdict and must be rejected (People v. Norrell, 105 AD3d 546 [1st Dept 2013]). d. Defendant Failed to Demonstrate that the Jury Improperly Considered His Silence at Trial Finally, the defendant argues that the verdict must be set aside because the jury improperly considered his decision not to testify. Ms. A.N. stated that “once the deliberations began, several jurors repeatedly stated that if Mr. Smith had had a valid story to tell, he would have told it, and they would hold against him his supposed failure to counter the complainant’s version of what happened in her apartment” (Defense Motions [Oct. 12, 2016], Exhibit A at 2). Although Ms. A.N. and Juror #9, which would be Mr. J.R., “repeatedly argued that this was both unfair and in violation of the law…the other jurors would not listen” (id.). Mr. J.R. testified that the jury discussed whether the complainant was telling the truth, and ultimately determined to believe her testimony. They made sure that a “right” verdict was reached by requesting a readback and engaging in a thorough discussion. He also testified that he followed the judge’s instruction, which included the admonition that the jury must not consider the defendant’s decision not to testify and the burden of proof. Mr. J.R. testified that he did not hear any juror talk about the defendant’s appearance or demeanor, or his decision not to testify. Ms. J.G. (Juror #10) testified that while some jurors commented on how the defendant did not testify at trial, the jury followed the judge’s instructions and did not consider the defendant’s silence against him. Mr. D.M. testified that he remembers thinking that the defendant should have testified, but he did not mention this to other jurors. Contrary to Ms. A.N.’s and Ms. J.G. (Juror #10)’s assertions, Mr. D.M. stated that the jury never discussed the fact that the defendant did not testify. Ultimately, he too followed the judge’s instructions and did not consider the fact that the defendant chose to remain silent in coming to the verdict. Similarly, Ms. M.S. testified that she remembers the judge’s instruction that the jury could not consider or draw any negative inferences from the defendant’s decision not to testify. She followed that instruction, according to the witness. Mr. M.J. and Mr. R.F. both affirmatively testified that the jury did not consider the fact that the defendant did not testify based on the judge’s instruction. Once again, based on the testimony that was adduced in this case, the defendant failed to establish that jury misconduct occurred. It bears repeating, “absent a specific showing of improper influence, a jury verdict could not be impeached” (Irizarry, 83 NY3d at 561). Here, the only person who mentioned about the jury’s inappropriate consideration of the defendant’s refusal to testify at trial is Ms. A.N. Even Mr. J.R., the juror that Ms. A.N. mentioned as the other juror who argued alongside her to prevent the other jurors from considering the defendant’s decision not to testify, did not corroborate Ms. A.N.’s assertions. In addition to the absence of corroborating evidence, Ms. A.N. testified that she no longer has any recollection about this issue. As discussed in the “Findings of Fact” above, this is incredible. The Court’s finding is further reinforced by other factors such as Ms. A.N.’s failure to raise any issue during polling (tr at A1193) or her failure to notify a court officer or the jury foreperson about her “grave misgivings.” When comparing her conduct to other well-documented cases of jurors who spoke up about their reservations about the verdict such as refusing to respond to the court’s question during polling (People v. Mercado, 91 NY2d 960 [1998]), saying that she was voting to convict under duress (People v. Pickett, 61 NY2d 773, 774 [1984]; see also People v. Simms, 54 AD3d 691, 691 [2d Dept 2008] [juror responded, "[w]ell, it is my verdict, although I feel like I was pressured to make that decision”]), the Court is led to conclude that the affidavit was filed by a dissatisfied juror, no more and no less. Moreover, even assuming that the jury had discussed the defendant’s decision not to testify, there is no evidence that it was considered improperly or that such consideration may have affected a substantial right of the defendant (see also People v. Camacho, 293 AD2d 876 [2002] [claims that four members of jury convicting defendant of murder and assault disregarded instructions, mandating that they not consider defendant's failure to testify or offer offense, were insufficient to warrant setting aside verdict; what was necessary were allegations of outside influence on jury], lv denied 98 NY2d 731 [2002]). As such, this branch of the defendant’s motion to set aside verdict is denied. CONCLUSION For all of the foregoing reasons, having duly conducted a CPL 330.30 hearing as mandated by the Court of Appeals and considering the witness testimony, parties’ written submissions, documents contained in the court file, transcripts from court proceedings and relevant case law, the defendant’s motion is denied. The Court has also considered the aggregate effect of the alleged jury misconduct and whether a substantial right of the defendant may have been affected and finds no reason to change the ruling. This constitutes the decision and order of this Court. Dated: August 2, 2022
