PEOPLE v. LITWA (1998)

Judgment, Supreme Court, Bronx County (Fred Eggert, J.), rendered September 6, 1990, convicting defendant, after a jury trial, of arson in the third degree, and sentencing him to a term of 4 to 12 years, unanimously affirmed.   The matter is remanded to Supreme Court, Bronx County for further proceedings pursuant to CPL 460.50(5).

In a prior order of this Court (see, People v. Litwa, 230 A.D.2d 638, 646 N.Y.S.2d 329), we held the appeal in abeyance and remitted for a reconstruction hearing to ascertain whether a note received by the court from the forelady was upon the sole request of the deliberating jurors or whether it was sent at the request of the alternates as well.   After remittitur, the hearing court concluded that any conversations between the alternate and deliberating jurors were of a “casual, non-specific nature.”   The court concluded that there was no evidence that the alternate jurors discussed the case, their deliberations or the subject matter of the notes with the deliberating jurors.   Nor was there evidence that the alternate jurors assisted the foreperson in drafting the note from the jury box.   Accordingly, as the hearing court noted, “substantial evidence to overcome the presumption of regularity herein did not exist (People v. Moore, 227 A.D.2d 227 [642 N.Y.S.2d 288] ).”  We have considered defendant's other contentions and find them to be without merit.

MEMORANDUM DECISION.