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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Terrance STEVENS, Defendant-Appellant.

Decided: September 29, 2000

PRESENT:  GREEN, J.P., PINE, HURLBUTT, KEHOE and LAWTON, JJ. Vincent F. Gugino, Buffalo, for Defendant-Appellant. Steven Meyer, New York City, for Plaintiff-Respondent.

 We reject the contention of defendant that County Court improvidently denied his motion pursuant to CPL 440.10 to vacate the judgment of conviction on the ground of juror misconduct.   The affidavits of the private investigators submitted by defendant constitute hearsay and thus are insufficient to support the motion (see, People v. Friedgood, 58 N.Y.2d 467, 473, 462 N.Y.S.2d 406, 448 N.E.2d 1317;  People v. Ford, 46 N.Y.2d 1021, 1023, 416 N.Y.S.2d 536, 389 N.E.2d 1058).   The affidavit of the alternate juror submitted by defendant also is insufficient to support the motion.   That juror did not participate in the deliberations and thus the affidavit provides no evidentiary support for the contention of defendant that he was prejudiced by juror misconduct (see, People v. Friedgood, supra, at 473, 462 N.Y.S.2d 406, 448 N.E.2d 1317;  People v. Ford, supra, at 1023, 416 N.Y.S.2d 536, 389 N.E.2d 1058).   Furthermore, the incidental observations by the one juror that were allegedly imparted to the other jurors did not contradict evidence presented at trial.   Thus, those observations do not require reversal;  there is no likelihood that prejudice would be engendered inasmuch as the observations do not relate to a material issue (see, People v. Maragh, 94 N.Y.2d 569, 573-574, 708 N.Y.S.2d 44, 729 N.E.2d 701;  cf., People v. Brown, 48 N.Y.2d 388, 394-395, 423 N.Y.S.2d 461, 399 N.E.2d 51).

Order unanimously affirmed.


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