PEOPLE v. BROWNE (2003)

Appeal from a judgment of the Supreme Court (Lamont, J.), rendered December 8, 2000 in Albany County, upon a verdict convicting defendant of the crime of manslaughter in the first degree.

Defendant and Andrick Nesbeth were indicted on numerous charges stemming from the beating death of Lamont Thomas in the City of Albany in July 1999.   Following a severance, defendant was convicted of manslaughter in the first degree.   Defendant's posttrial motions to set aside the verdict were denied and he was sentenced to a prison term of 17 1/212 years.   This appeal followed.

 Initially, we reject defendant's challenge to the legal sufficiency of the evidence supporting his conviction.   The testimony of the prosecution's key witness, Percy Smith, established that, on July 10, 1999, defendant, an admitted drug dealer, had threatened to “take care of” the person who had stolen his drugs.   The next day Smith heard defendant, Nesbeth and a third person plan to “get” Thomas that night, saw them enter Thomas's building and subsequently heard moaning coming from Thomas's apartment.   Later that night, Nesbeth told Smith that they had “f* * *ed [Thomas] up.”   Thomas was found badly beaten in his apartment and died four days later as a result of head injuries he suffered in the attack.   Defendant's written statement to authorities which described his limited involvement in the beating was admitted on the People's direct case, but repudiated by him at trial.

 Viewing the evidence in the light most favorable to the prosecution (see People v. Taylor, 94 N.Y.2d 910, 911, 707 N.Y.S.2d 618, 729 N.E.2d 337 [2000];  People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), a jury could rationally conclude that defendant intended to cause serious physical injury to Thomas, that he acted either as a principal or an accomplice in inflicting serious physical injuries and that Thomas died as a result of those injuries (see Penal Law §§ 20.00, 125.20[1];  People v. Lewis, 300 A.D.2d 827, 828, 752 N.Y.S.2d 172 [2002], lv. denied 99 N.Y.2d 630, 760 N.Y.S.2d 111, 790 N.E.2d 285 [2003];  People v. Owens, 251 A.D.2d 898, 899, 674 N.Y.S.2d 847 [1998], lv. denied 92 N.Y.2d 951, 681 N.Y.S.2d 481, 704 N.E.2d 234 [1998];  compare People v. Stevens, 153 A.D.2d 768, 769, 544 N.Y.S.2d 889 [1989], affd. 76 N.Y.2d 833, 560 N.Y.S.2d 119, 559 N.E.2d 1278 [1990] ).   Viewing this evidence in a neutral light (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ), balanced against defendant's denial of any involvement and the alibi provided by his fiancée, we conclude that the jury's verdict was not against the weight of the evidence (see People v. Lewis, supra at 829, 752 N.Y.S.2d 172;   People v. Reynolds, 269 A.D.2d 735, 736, 704 N.Y.S.2d 398 [2000], lv. denied 95 N.Y.2d 838, 713 N.Y.S.2d 145, 735 N.E.2d 425 [2000], cert. denied 531 U.S. 945, 121 S.Ct. 342, 148 L.Ed.2d 275 [2000] ).

 Nor do we find merit in defendant's contention that the verdict should have been set aside due to juror misconduct.   While CPL 330.30(2) provides that a verdict may be set aside upon a showing that a juror's improper conduct has “affected a substantial right of the defendant” (see People v. Clark, 81 N.Y.2d 913, 914, 597 N.Y.S.2d 646, 613 N.E.2d 552 [1993] ), “not every misstep by a juror rises to the inherently prejudicial level at which reversal is required” (People v. Brown, 48 N.Y.2d 388, 394, 423 N.Y.S.2d 461 [1979] ).

Upon reviewing each instance of juror misconduct to determine whether defendant was prejudiced (see People v. Irizarry, 83 N.Y.2d 557, 561, 611 N.Y.S.2d 807, 634 N.E.2d 179 [1994];  People v. Leonard, 252 A.D.2d 740, 741, 677 N.Y.S.2d 639 [1998], lv. denied 92 N.Y.2d 983, 683 N.Y.S.2d 764, 706 N.E.2d 752 [1998] ), we fail to find error.   The allegation by juror No. 9 that several jurors threatened others into a compromise verdict is insufficient for its impeachment where, as here, the proffer is solely “proof of the tenor of its deliberations” (People v. Brown, supra at 393, 423 N.Y.S.2d 461, 399 N.E.2d 51;  see People v. Maragh, 94 N.Y.2d 569, 573, 708 N.Y.S.2d 44, 729 N.E.2d 701 [2000];  People v. Anderson, 249 A.D.2d 405, 405-406, 671 N.Y.S.2d 149 [1998], lv. denied 92 N.Y.2d 877, 678 N.Y.S.2d 25, 700 N.E.2d 563 [1998] ).   Nor do we find prejudice by allegations that juror No. 12 had told juror No. 9, prior to the close of proof, that the case “was going to be an easy case” and that it would be “a good thing to get another drug dealer off the streets.”   While juror No. 12 admitted to having characterized the case as “easy,” juror No. 9's testimony, that she had wholly disregarded these comments, supports Supreme Court's finding (see People v. Cilberg, 255 A.D.2d 698, 700, 680 N.Y.S.2d 697 [1998], lv. denied 93 N.Y.2d 968, 695 N.Y.S.2d 53, 716 N.E.2d 1098 [1999];  People v. Leonard, supra at 741, 677 N.Y.S.2d 639).   Finally, we address the admission by juror No. 12 that he and another juror left the hotel where they were sequestered, went to a nearby bar and had several drinks.   Testimony revealed that while they were socializing, they did not discuss the case and that their deliberations on the following day were unaffected by the alcohol consumption (see People v. Augustine, 235 A.D.2d 915, 916, 920-921, 654 N.Y.S.2d 179 [1997], appeal dismissed 89 N.Y.2d 1072, 659 N.Y.S.2d 850, 681 N.E.2d 1297 [1997], lv. denied 89 N.Y.2d 1088, 660 N.Y.S.2d 381, 682 N.E.2d 982 [1997];  People v. Sledge, 223 A.D.2d 922, 926, 636 N.Y.S.2d 930 [1996], lv. denied 88 N.Y.2d 854, 644 N.Y.S.2d 700, 667 N.E.2d 350 [1996] ).

Defendant's remaining contentions, including his claim that his sentence was harsh and excessive and that the verdict was repugnant, are either unpreserved or have been considered and rejected as unavailing.

ORDERED that the judgment is affirmed.

PETERS, J.

CARDONA, P.J., CREW III, SPAIN and LAHTINEN, JJ., concur.