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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Johnnie McDONALD, appellant.

Decided: May 29, 2007

HOWARD MILLER, J.P., DAVID S. RITTER, JOSEPH COVELLO, and RUTH C. BALKIN, JJ. Lynn W.L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and John F. McGoldrick of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered February 8, 2005, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

A motion to set aside a verdict may be granted where it is shown by a preponderance of the evidence that improper conduct by a juror prejudiced a substantial right of the defendant (see CPL 330.30[2], 330.40[2][g];  People v. Irizarry, 83 N.Y.2d 557, 561, 611 N.Y.S.2d 807, 634 N.E.2d 179).   At the fact-finding hearing, the defendant called, as his sole witness, Juror No. 2, who testified that her opinion was not influenced by another juror, who indicated that the defendant was guilty, and the Supreme Court credited that testimony.   That determination is entitled to great deference and, in any event, is supported by the record (see People v. Romano, 8 A.D.3d 503, 504, 778 N.Y.S.2d 517;  People v. Browne, 307 A.D.2d 645, 646, 763 N.Y.S.2d 695;  People v. Mack, 224 A.D.2d 448, 449, 637 N.Y.S.2d 739).   As the Supreme Court correctly found, there was no evidence presented suggesting that these comments were made to any other jurors.

Furthermore, neither Juror No. 2 nor the defendant ever identified the juror who made these comments.   The defendant did not call that juror to testify, and did not clearly identify whether such comments were made before or during deliberations.   Therefore, he failed to satisfy his burden (see CPL 330.30 [2] [g] ).  Moreover, the fact that the jury acquitted the defendant of three counts in the indictment indicated that the unidentified juror had not predetermined the defendant's guilt (see People v. Browne, supra;  People v. Rhodes, 92 A.D.2d 744, 745, 461 N.Y.S.2d 81).   Accordingly, the Supreme Court properly denied the defendant's motion to set aside the verdict.

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