PEOPLE v. PETIKAS (2005)

The defendant moves pursuant to CPL §§ 330.30 and 370.10 for an order setting aside the verdict upon the grounds that (1) the Court committed reversible error by improperly allowing the People's challenge “for cause” of a prospective juror and the People' s peremptory challenges were ultimately exhausted before jury selection was complete;  (2) the defendant was deprived of a fair trial because of the People's prosecutorial misconduct during summation;  and (3) improper conduct by a juror during deliberations, out of the presence of the Court, which may have affected a substantial right of the defendant.   The People oppose the defendant's motion.

I. PROCEDURAL HISTORY

In January of 2004, the defendant was charged by way of a simplified traffic information, with a violation of VTL § 1192.2 [Operating a Motor Vehicle While Intoxicated Per Se;  that is, with a blood alcohol content of .08% or more by weight of alcohol in his blood] and VTL § 319.1 [Operating a Motor Vehicle Without Insurance].

In February of 2005, after a two week jury trial, the jury returned a verdict of guilty on the charge of VTL § 1192.2 [Driving While Intoxicated-Per Se].

In May of 2005, the defendant filed the instant motion to set aside the verdict, pursuant to CPL §§ 330.30 and 370.10 upon the above-mentioned grounds.

The defendant has not been sentenced.

II. JURY CHALLENGE “FOR CAUSE”

[A] Relevant Factual History

In this case, during jury selection, a group of fourteen (14) prospective jurors were seated in the jury box, addressed by the Court and questioned by the parties.   Outside the presence of the prospective jurors, the Court entertained “for cause” and “peremptory” challenges by the parties.   In the event that one of the parties did not consent to a “for cause” challenge, the Court was requested to make a ruling on said challenge.

At one point, the People requested that a prospective juror be excluded from service “for cause” as said prospective juror had served on a previous jury wherein the defendant, in the previous case had been charged with VTL § 1192.2, the same charge as the charge in the instant case.   The defense counsel questioned whether the juror had to be removed as a matter of law.   The Court indicated “yes”.   The prospective juror was excused from service, by this Court, “for cause”, as a matter of law, pursuant to CPL § 360.25(1)(e).   After a discussion off the record, the defense counsel stated on the record that he did not consent to the Court's ruling.  [The relevant record regarding the challenge “for cause” of this prospective juror is set forth on pages 104-105 of the Court transcript.]

The Court's ruling was based upon the plain reading of CPL § 360.25(1)(e).   Moreover, although not stated on the record, this Court reasoned, that said ruling was appropriate, especially in light of the recent change in the specific DWI statute, in which the defendant was charged.  [In 2002, VTL 1192.2, the New York state “Driving While Intoxicated per se” statute was amended to change the blood alcohol percentage level from .10 % to .08%].

Prior to the end of jury selection, the People had exhausted all of their peremptory challenges [see, transcript page 154].   Moreover, before the entire jury panel was sworn, the defense counsel again stated its objection to this Court's ruling, allowing the People's challenge “for cause”, pursuant to CPL § 360.25(1)(e).   The Court transcript on page 157 reads, in relevant part, as follows:

Mr. Brunetti:  I don't know if your court reporter had it [-] you removed Mr. XXXX.   I want you to know we didn't consent to that.   I understand you said it was by statute, by I want to make it clear we didn't consent.   We object to that.   Obviously it's already done if that's the statute based upon what you said.

The Court:  Please make any record at the time.

Mr. Brunetti:  I did say I did not consent?   I just want to make sure.

The Court:  Let's swear in the other three.

[B] Legal Analysis

CPL § 360.25(1) sets forth the New York statutory grounds for challenges “for cause” of a prospective juror, in a criminal case involving charges by way of an information.  CPL § 360.25(1)(e) reads, in pertinent part, that:

“A challenge for cause is an objection to a prospective member of the jury and may be made only on the ground that:  ․

He served on a trial jury in a prior civil or criminal action involving the same conduct charged;  or where a prosecutor's information was filed at the direction of a grand jury, he served on the grand jury which directed such a filing.” [emphasis added]

The defendant interprets the phrase “same conduct charged ” to mean that the prospective juror in the instant case, served as a juror in an earlier proceeding involving the same conduct charged, with the same defendant.   The People claim that the defendant did not preserve the issue for Appellate review and that the Court should apply the plain reading of the statute and conclude that the “same conduct charged ” to mean that the prospective juror served as a juror at a previous trial involving the same type of crime.

[A] Preservation and Harmless Error

The first issue raised by the People is whether a motion to set aside a verdict, pursuant to CPL § 330.30(1), requires preservation of the objection, in the trial record, in order for the Court to consider the motion to set aside the verdict.  CPL § 330.30, sets forth the statutory grounds upon which a judge may set aside or modify a guilty verdict before sentence.   CPL § 330.30 is applicable to the instant case, pursuant to CPL 370.10 ¹ .  Subdivision one of CPL § 330.30 reads, in relevant part, as follows:

“Any ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court.”

 Thus, CPL § 330.30(1) permits a trial judge to set aside a verdict only as a matter of law.   Appellate review on the law requires the issue be preserved (see, People v. Thomas, 8 A.D.3d 303, 777 N.Y.S.2d 673 [2d Dept.2004] ).   Thus, a timely protest is an essential prerequisite for relief under a CPL § 330.30(1) claim of an error of law, unless the error has deprived the defendant of a fundamental right (see, People v. Davidson, 98 N.Y.2d 738, 751 N.Y.S.2d 161, 780 N.E.2d 972 [2002];  People v. Padro, 75 N.Y.2d 820, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990];  People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95 [1992] ).   A question of law is preserved for appellate review when the trial court is appraised of the objection and afforded an opportunity to cure the error (People v. Wales, 138 A.D.2d 766, 525 N.Y.S.2d 387 [3d Dept.1988];  CPL § 470.05[2] ).   This Court has found two appellate level cases that hold that a timely objection to disqualify a juror is required during jury selection, otherwise no judgment would be safe from attack (see, People v. Wales, 138 A.D.2d 766, 525 N.Y.S.2d 387, supra [3d Dept.1988];  People v. Foster, 100 A.D.2d 200, 473 N.Y.S.2d 978 [2d Dept.1984] ).

 In the instant case, Court finds that defense counsel had put this Court on notice that the defense did not agree with the Court's ruling to allow the People's challenge “for cause”.   The record reveals that after this Court made the determination to allow the People's challenge “for cause”, the defense counsel stated to the Court that “we're not consenting” [see, Court transcript pages 104-105].   Moreover, before the entire jury was sworn, defense counsel again made clear his objection to the Court's ruling [see, Court transcript page 157].   Thus, the Court finds that the defendant did timely object to the Court's ruling.

 Furthermore, in order to preserve an erroneous ruling for a challenge “for cause” during jury selection, the New York Statutory scheme requires the People to have exhausted their peremptory challenges before completion of jury selection (see, People v. Foster, 100 A.D.2d 200, 473 N.Y.S.2d 978, supra [2d Dept.1984] ).  CPL § 270.20(2), applicable to the instant case pursuant to CPL § 360.25(2) ² reads, in relevant part, that “․ [a]n erroneous ruling by the court allowing a challenge for cause by the People does not constitute reversible error unless the People have exhausted their peremptory challenges at the time or exhaust them before the selection of the jury is complete ․”.  Subdivision (2) of CPL § 270.20(2) goes on to state that the denial of a defendant's for cause challenge is not reversible error unless the defendant has exhausted all peremptory challenges or uses a peremptory challenge against the disputed juror and later exhausts all such challenges.   In laying out these requirements, the statute contemplates remedial action by the appellate court when the trial court improperly grants or denies a challenge for cause (see, People v. Foster, 100 A.D.2d 200, 473 N.Y.S.2d 978, supra ).

New York courts have enforced the statutory requirements for preservation by the exhaustion of peremptory challenges strictly (see, People v. Foster, 100 A.D.2d 200, 473 N.Y.S.2d 978 [2d Dept.1984] affd. 64 N.Y.2d 1144, 490 N.Y.S.2d 726, 480 N.E.2d 340 [1985] ).   The exhaustion of peremptory challenges constitutes the harm to trigger the statutory remedy contemplated in CPL § 270.20(2) (see, People v. Cahill, III, 2 N.Y.3d 14, 777 N.Y.S.2d 332, 809 N.E.2d 561 [2003] ).   The Court of Appeals has held that when a trial court rules in violation of CPL § 270.20(1), a new trial is the only possible remedy (see, People v. Cahill, III, 2 N.Y.3d 14, 777 N.Y.S.2d 332, 809 N.E.2d 561, supra ).

In the instant case, the record is clear that prior to the end of jury selection, the People had exhausted all of their peremptory challenges and thus the Court's ruling is preserved for Appellate review.

Accordingly, this Court will consider the defendant's argument with regard to the Court's interpretation of CPL § 360.25(1)(e).

[B] CPL § 360.25(1)(e)

 Statutory construction is a function of the courts (see, McKinney's Con. Laws of New York, Book 1, Statutes § 75, see also Yong-Myun Rho v. Ambach, 74 N.Y.2d 318, 546 N.Y.S.2d 1005, 546 N.E.2d 188 [1989] ).   Statutory construction requires, that when the language of a statute is clear, the court give effect to the plain and ordinary meaning of the words (see, McKinney's Con. Laws of New York, Book 1, Statutes § 94;  see also, People v. Munoz, 207 A.D.2d 418, 615 N.Y.S.2d 730 [2d Dept.1994] ).   The “plain meaning rule” of statutory interpretation provides that where language in a statute is plain and admits of no more than one meaning, the duty of interpretation does not arise and the rules which are to aid doubtful meaning need no discussion (see, People v. Stone, 138 A.D.2d 4, 530 N.Y.S.2d 116 [1st Dept.1988] reversed upon other grounds 73 N.Y.2d 296, 539 N.Y.S.2d 718, 536 N.E.2d 1137 [1989] ).   However, when aid to construction of the meaning of words or phrases as used in a statute are available, there is no rule of law which forbids their use, no matter how clear the words may appear on initial examination (see, Raritan Development Corp. v. Silva, 91 N.Y.2d 98, 667 N.Y.S.2d 327, 689 N.E.2d 1373 [1997] ).

 Moreover, the “plain meaning rule” will not apply where a reading gives use to absurd or mischievous consequences or thwart a manifest purpose.   In such cases, contextual approach directs that courts will construe the details of a statute in conformity with its denominating general purpose and will read a text in light of context and will interpret the text so far as the meaning of the words fairly permit as to carry out in particular cases the generally expressed legislative policy [internal citation omitted] (see, McKinney's Con. Laws of New York, Book 1, Statutes § 111;  see also, In re William W., 188 Misc.2d 630, 729 N.Y.S.2d 259 [2001] ).

Thus, the Courts may look behind the words of a statute when the law itself is doubtful or ambiguous (see, Yong-Myun Rho v. Ambach, 74 N.Y.2d 318, 546 N.Y.S.2d 1005, 546 N.E.2d 188, supra ).   The purpose and object of a statute may properly be considered as an aid to its interpretation (see, McKinney's Con. Laws of New York, Book 1, Statutes § 73).  “․ [W]here there is doubt as to the meaning of the language of [a] statute, various extrinsic matters throwing light on legislative intent may be considered by the courts.   Resort may be had to any authoritative source of information, including documents, and the court may also make use of general facts of common knowledge or public notoriety.   Further, statements of the draftsman of the statute are properly considered in determining legislative intent” (McKinney's Con. Laws of New York, Book 1, Statutes § 120;  see also Allstate Ins. Co. v. Libow, 106 A.D.2d 110, 482 N.Y.S.2d 860 [2d Dept.1984] ).  “In ascertaining the purpose and applicability of a statute, it is proper to consider the legislative history of the act, the circumstances surrounding the statute's passage, and the history of the times” (McKinney's Con. Laws of New York, Book 1, Statutes § 124).   Where a statute is ambiguous, a court may even look to reports of committees or commissions concerned with the legislation as an aid to construction (McKinney's Con. Laws of New York, Book 1, Statutes § 125).

 In view of the foregoing, the “plain meaning rule” is not applicable to the case at bar as the phrase “same conduct charged ” contained in CPL § 360.25(1)(e) may arguably admit more than one meaning.   Therefore, it is appropriate for this Court to interpret CPL § 360.25(1)(e) to give effect to the Legislature's general purpose.

This Court has not found any case law interpreting CPL § 360.25(1)(e).   However, this Court has found one New York case from Bronx County that interpreted the statutory phrase the “same conduct charged ”.  People v. Beirati, 136 Misc.2d 959, 519 N.Y.S.2d 500 (Supreme Court, Bronx County 1987), interpreted CPL § 270.20(1)(e), a section of the CPL which prescribes one of the grounds for a challenge “for cause” of a prospective juror for a criminal case involving charges by way of indictment in superior court, not by way of an information.   In 1987, CPL § 270.20(1)(e) was worded similar to CPL § 360.25(1)(e), and read as follows:

“A challenge for cause is an objection to a prospective juror and may be made only on the ground(s) that:  ․

[h]e served on the grand jury which found the indictment in issue or served on a trial jury in a prior civil or criminal action involving the same conduct charged in such indictment ․” [emphasis added]

In the Beirati case, the issue presented was whether a prospective juror who had previously served on a jury, where the indictment charged in the previous case was a crime of attempted murder, was subject to challenge “for cause” in a subsequent trial for a different defendant charged by an indictment for attempted murder pursuant to CPL § 270.20(1)(e)?   The Beirati Court concluded that the People's challenge “for cause” should be denied. The Court in Beirati found that the phrase the “same conduct charged ” to mean more than the same general type of accusation.   The Court held that the “same conduct charged ” was to be narrowly interpreted to mean “same alleged incident and the same acts in connections therewith alleged to have been committed”.   The Beirati Court reasoned:

“Had this not been the intent of the legislature it surely would have used language omitting the phrase ‘same conduct’ and substituted therefor a phrase more akin to ‘same category of crime’, ‘the same type of charge’ or another more appropriate phrase.   Not having employed such language it must be concluded that the legislature did not intend to create a category of disqualification with so broad an impact on the availability of jurors for service.   Had they intended to enact legislation which would cause such a result surely they would have, as indicated, used language more specific in pointing to such a result.”

The Beirati Court respectfully suggested that it would not be inappropriate for the Legislature to reconsider the statutory language in question and amend it so as to make its intention more clear.   In 1989, in response to the Beirati case, the New York State Legislature amended CPL § 270.20(1)(e).   The statute was amended to the extent that the word “conduct ” was deleted and replaced with the word “incident ”.  CPL § 270.20(1)(e), as amended in 1989, reads, in relevant part, as follows:

“A challenge for cause is an objection to a prospective juror and may be made only on the ground(s) that ․

[h]e served on the grand jury which found the indictment in issue or served on a trial jury in a prior civil or criminal action involving the same incident charged in such indictment ․”. [emphasis added]

[The effective date of the amendment was November 1, 1989.]   A letter from the Bronx Assemblyman who sponsored the bill to amend CPL § 270.20(1)(e), dated April 17, 1989, stated, in relevant part, as follows:

“I write to recommend the approval by the Governor of the above bill which makes a clarifying correction in the Criminal Procedure Law to remove an ambiguity.   The present statute permits a challenge for cause where a potential juror has served in the past in an action involving the same ‘conduct’.   The bill allows the challenge only where it is the same “incident”.   Making this change clearly establishes that it is earlier exposure to the facts charged in the indictment and not to a similar crime that permits the challenge.”

Although a letter from a single legislator is not determinative of legislative intent, this legislator's letter is consistent with the justification set forth by the entire assembly at the time of the amendment (see, County of Cortland v. Commission, 146 Misc.2d 1084, 552 N.Y.S.2d 511 [Supreme Court, Albany County 1990] ).   The justification set forth in the New York State Assembly Memorandum in Support of the amendment, dated April 18, 1988, read, in pertinent part, as follows:

“Is a potential juror, who had previously served on a jury where the indictment charged the crime of attempted murder, subject to a challenge for cause on the trial of a subsequent indictment for attempted murder involving a different incident and a different defendant?   This question was raised by the defendant's attorney in People v. Nagash Beirati.   The court held that the challenge must be denied.   Justice Shapiro, however, noted that the language of subdivision e of section 270.20 C.P.L. was not clear and should be amended to specify the legislative intent.

This amendment deletes the word conduct and substitutes it with the word incident.   This change makes it clear that a juror can be challenged for cause under this subdivision only if he or she served on a previous jury that considered the same alleged incident not the same general type of accusation.   This amendment is consistent with the decision in People v. Nagash Beirati.”

 Thus, it is clear to this Court that CPL § 270.20(1)(e), which is applicable to charges by way of an indictment was amended because of the Beirati decision.   However, the Legislature did not amend CPL § 360.25(1)(e), which is applicable to charges by way of an information.   Was the Legislature's failure to amend CPL § 360.25(1)(e) to be viewed as a legislative oversight or is such failure to amend an indication that such exclusion was intentional?   The hoary maxim of statutory construction “expressio unius est exclusio alterus ”, literally means the expression of one is exclusion of the other was legislatively canonized in New York in McKinney's Con. Laws of New York, Book 1, Statute § 74 (see, In re William W., 188 Misc.2d 630, 729 N.Y.S.2d 259, supra [2001];  see also Pajak v. Pajak, 56 N.Y.2d 394, 452 N.Y.S.2d 381, 437 N.E.2d 1138 [1982] ).   McKinney's Con. Laws of New York, Book 1, Statute § 74 states, in relevant part, that:

“The failure of the Legislature to include a matter within a particular statute may be construed as an indication that its exclusion was intended.”

 Thus, a court cannot read into a statute a provision which the Legislature did not see fit to enact (see, McKinney's Con. Laws of New York, Book 1, Statutes § 363;  see also Town of Hoosick v. Eastern Rensselaer County Solid Waste Management, 182 A.D.2d 37, 592 N.Y.S.2d 472 [3d Dept.1992] ).   However, when Legislative intent is clear, an omission in a statute may be considered an inadvertence and supplied by the courts and words obviously omitted by mistake may be supplied to prevent inconsistency and unreasonableness (see, McKinney's Con. Laws of New York, Book 1, Statutes § 363;  People v. Harris, 123 Misc.2d 989, 476 N.Y.S.2d 235 [N.Y.Co.Ct.1984] ).

In the instant case, this Court holds that the Legislature's failure to amend the phrase “same conduct charged ” used in CPL § 360.25(1)(e) was caused by the Legislature's inadvertence and not by design.   The Legislature found the phrase “same conduct charged ” used in CPL § 270.20(1)(e) to be ambiguous.   The same exact phrase is used in CPL § 360.25(1)(e).  CPL § 360.25(1)(e) creates the same ambiguity that CPL § 270.20(1)(e) did prior to the 1989 amendment.   Certainly the Legislature could not have intended the statute dealing with misdemeanors to have a broader reach of juror disqualification than the statute dealing with felonies.

Moreover, in addition to the New York Legislature's intent found in support of the interpretation of the phrase “same conduct charged ”, the Federal Courts have consistently followed a general rule that prior jury service on a similar case arising out of a separate and distinct set of circumstances, even though the offenses charged are the same offenses, is an insufficient basis for a challenge for cause, unless it can be shown that such prior service actually biased the prospective juror (see, United States v. Haynes, 398 F.2d 980 [2d Cir.1968] cert. denied 393 U.S. 1120, 89 S.Ct. 996, 22 L.Ed.2d 124, United States v. Cooper, 332 F.2d 790 [3d Cir.1964];  United States v. Estrada, 441 F.2d 873 [9th Cir.1971];  United States v. Mutchler, 559 F.2d 955 [5th Cir.1977], reconsidered and modified, 566 F.2d 1044 [5th Cir.1978];  United States v. Riebschlaeger, 528 F.2d 1031 [5th Cir.];   cert. denied 429 U.S. 828, 97 S.Ct. 86, 50 L.Ed.2d 91 [U.S. Texas 1976] ).

Accordingly, now upon submission of the party's papers, this Court's own research;  the applicable rules of statutory construction;  the Legislature's memorandum and intent for amending CPL § 270.20(1)(e), it is this Court's position that the phrase “same conduct charged ” does not merely mean the same type of charge.   Rather, said phrase should be narrowly interpreted to mean the same earlier exposure to the facts, involving the same defendant. To give this statute any other construction, would give an ambiguous phrase scope beyond that intended by the Legislature (see, People v. Congress Radio, 133 Misc. 542, 232 N.Y.S. 647 [Court of General Sessions 1929] ).

Although this Court was properly concerned about the prospective juror's ability to render an impartial verdict based upon evidence only adduced at this trial (especially in light of the recent change in the DWI law), said juror should have been questioned about his ability to render an impartial verdict despite his past experience as a juror.   The prospective juror should not have automatically been discharged for service merely because he sat on a previous DWI trial.   Accordingly, it was an error for this Court to excuse this prospective juror “for cause”, pursuant to CPL § 360.25(1)(e).

Moreover, this error was a reversible error, as set forth in CPL § 270.20(2), applicable to this case pursuant to CPL § 360.25(2), because the People had exhausted their peremptory challenges before jury selection was complete.

Based upon the foregoing, this portion of the defendant's motion to set aside the verdict is hereby granted.   The Court reverses the verdict and a new trial is ordered.

This Court, like the Beirati Court respectfully suggests that it would not be inappropriate for the Legislature to reconsider the statutory language in question and amend CPL § 360.25(1)(e) to be consistent with the statutory language used in CPL § 270.20(1)(e).

Notwithstanding the above ruling to set aside the verdict, this Court will entertain the remaining two issues raised by the defendant.

III. PROSECUTORIAL MISCONDUCT

In the second portion of the defendant's motion to set aside the verdict, the defense counsel claims that the People committed reversible error by (1) in summation telling the jury that the defendant's testimony was a “nice, pretty tale” or “nice tale”, or “less than the truth” or “worthless” or “didn't happen” as a matter of “fact”, and also vouching for the People's witnesses;  (2) commenting on the defendant's silence and persisting even after objection was sustained;  (3) denigrating the defense and defense counsel.   The People claim that the People's arguments made in summation were fair comments based on the evidence presented at trial and were made in response to the arguments presented during defense counsel's summation.

 The defendant's second ground for setting aside the verdict is also pursuant to CPL § 330.30(1).   Again, a trial court's power to set aside a verdict under this section arises only where an appellate court would be required, as a matter of law, to reverse or modify the judgment of conviction (see, People v. Thomas, 8 A.D.3d 303, 777 N.Y.S.2d 673 [2d Dept.2004] ).   As set forth previously, appellate review on the law requires the issue be preserved (see, People v. Thomas, 8 A.D.3d 303, 777 N.Y.S.2d 673, supra ).   Thus, this Court must examine whether the defendant preserved for appellate review, his challenges to the People's summation.

Under New York law, in order to preserve for appellate review, challenges to a prosecution's summation, defense counsel is required to challenge the prosecutor's alleged errors in summation by way of specific objections before the trial court (see, People v. Harris, 98 N.Y.2d 452, 492 at n. 18, 749 N.Y.S.2d 766, 779 N.E.2d 705 [N.Y.Ct.App.2002];  People v. Schneiderman, 295 A.D.2d 137, 743 N.Y.S.2d 437 [1st Dept.2002] ).   The word “objection” alone is insufficient to preserve an issue for appellate review (see, People v. Beggs, 19 A.D.3d 1150, 796 N.Y.S.2d 826 [4th Dept.2005];  People v. Tevaha, 84 N.Y.2d 879, 620 N.Y.S.2d 786, 644 N.E.2d 1342 [1994];  People v. Fleming, 70 N.Y.2d 947, 524 N.Y.S.2d 670, 519 N.E.2d 616 [1988];  People v. West, 56 N.Y.2d 662, 451 N.Y.S.2d 711, 436 N.E.2d 1313 [1982] ).   Moreover, if a Judge makes a curative instruction and defense counsel neither objects further, nor requests a mistrial, the curative instructions must be deemed to have corrected the error to the defendant's satisfaction (see, People v. Heide, 84 N.Y.2d 943, 620 N.Y.S.2d 814, 644 N.E.2d 1370 [1994] ).

In the instant case, although the defense attorney made numerous objections to the People's summation, the defense counsel failed to specifically object to most of the comments made by prosecutor during summation or seek further relief.   Accordingly, the alleged improprieties in the prosecutor's summation were largely unpreserved for appellate review.

The defendant's objections to the prosecutor's summation that were preserved were proper responses to arguments that defense counsel had made during summation and may be characterized as fair comment on the evidence (see, People v. Ferrara, 220 A.D.2d 612, 632 N.Y.S.2d 819 [2d Dept.1995] ).   Moreover, the People's summation remained within the broad bounds of permissible advocacy (see, People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885 [1981] ).   No single remark was so outrageous as to warrant a new trial in and of itself, nor did the cumulative effort of the People's summation be deemed to have deprived the defendant of a fair trial.

In view of the foregoing, this portion of the defendant's motion to set aside the verdict, based upon the grounds of prosecutorial misconduct is denied.

IV. JUROR MISCONDUCT

 In the third argument raised by the defendant, in its motion to set aside the verdict, the defense counsel argues that the verdict should be set aside pursuant to CPL § 330.30(2), due to juror misconduct.   The defense claims that juror misconduct occurred because a juror allegedly relied on per-drink alcohol content data that was not in evidence.   The People claim that defense counsel's affidavit of the juror's alleged misconduct is hearsay and the alleged misconduct merely a sharing of the juror's past experience.

CPL § 330.30(2) permits the Court, after rendition of the verdict, but before sentencing, upon motion of the defendant, to set aside a verdict if “during the trial there occurred, out of the presence of the court, improper conduct by a juror, or improper conduct of another person in relation to 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”.

 In order to set aside a verdict based upon juror misconduct, the defendant must demonstrate a substantial risk of prejudice (see, People v. Brown, 48 N.Y.2d 388, 423 N.Y.S.2d 461, 399 N.E.2d 51 [1979] ).   A substantial risk of prejudice to the defendant's rights exists when a juror's or the jury's conduct colors the views of the other jurors as well as his/her own (see, People v. Brown, 48 N.Y.2d 388, 423 N.Y.S.2d 461, 399 N.E.2d 51, supra ).   Overall, a reversible error can materialize from jurors conducting personal specialized assessments not within the common knowledge and experience of a juror communicating that “assessment ” or opinion to the rest of the jury panel with the force of private, untested truth as though it were evidence (see, People v. Brown, 48 N.Y.2d 388, 423 N.Y.S.2d 461, 399 N.E.2d 51, supra ).

 Notwithstanding, a trial Court is correct in summarily denying a motion to set aside a verdict, without a hearing, if the application is supported only by hearsay allegations or speculative claims of prejudice contained in an affidavit of defense counsel (see, People v. Friedgood, 58 N.Y.2d 467, 462 N.Y.S.2d 406, 448 N.E.2d 1317 [1983] ).

In the instant case, this portion of the defendant's motion to set aside the verdict based upon juror misconduct was only supported by an affidavit of defense counsel.   No explanation was offered as to why affidavits could not be obtained from the juror who allegedly acted inappropriately or from jurors that observed other jurors acting inappropriately (see, People v. Friedgood, 58 N.Y.2d 467, 462 N.Y.S.2d 406, 448 N.E.2d 1317, supra ).

Based upon the foregoing, this portion of the defendant's motion to set aside the verdict based upon juror misconduct, is hereby denied.

FOOTNOTES

1.   The provisions of article three hundred thirty, governing the proceedings from verdict to sentence in an action prosecuted by indictment in a superior court, are applicable to a prosecution by information in a local criminal court;  provided, however, where a judicial hearing officer has conducted the trial pursuant to section 350.20 of this chapter, all references to a court therein shall be deemed references to such judicial hearing officer (see, CPL § 370.10).

2.   The provisions of subdivision two of section 270.20 with respect to challenges are also applicable to the selection of trial jury in a local criminal court (CPL § 360.25[2] ).

DANA M. JAFFE, J.