PEOPLE v. GUILLEN (2020)

The court improvidently exercised its discretion in denying, without a hearing, that branch of defendant's motion to set aside the verdict on the ground of alleged misconduct by two jurors (see CPL 330.40[2][f]).

The People's trial preparation assistant, who assisted the trial prosecutors, disclosed that some time after the trial and before sentencing, he received a handwritten note in the mail from the jury foreperson, stating:  “Now that the trial is over ․” (ellipsis in original), followed by the juror's first and last name, her juror number, the court part in which the trial had occurred, her phone number, and her address.  The note also included a crossed-out phrase from which it could be inferred that the original version of the note had been written during the trial.

Under the circumstances, the note itself was sufficient evidence to raise an issue of fact about whether the foreperson's apparent romantic interest in the trial preparation assistant prevented her from deliberating fairly (see People v. McGregor, 179 A.D.3d 26, 113 N.Y.S.3d 675 [1st Dept. 2019];  see also People v. Southall, 156 A.D.3d 111, 65 N.Y.S.3d 508 [1st Dept. 2017], lv denied 30 N.Y.3d 1120, 77 N.Y.S.3d 345, 101 N.E.3d 986 [2018]).  The assistant's affidavit stating that he did not respond to the juror's note or otherwise communicate with her at any time is not dispositive, as the issue is the juror's misconduct or bias during the trial.

The court also erred with regard to a second juror.  That juror had a sufficiently close relationship with a witness to warrant a hearing as to whether that juror engaged in misconduct by failing to disclose the relationship to the court.  Accordingly, we direct a hearing as to both jurors.  At this stage of the appeal, we do not address defendant's remaining claims.