The Fourth Department, over a two-justice dissent, determined that juror misconduct warranted a new trial in this murder case:
We begin by noting that, at the hearing on the CPL 330.30 motion, defendant established that during the trial juror number 12 engaged in text messaging with third parties about the trial. Indeed, after being selected to serve on the jury, juror number 12 received a text message from her father that stated: “Make sure he’s guilty!” During the trial, juror number 12 received a text message from a friend asking if she had seen the “scary person” yet. Juror number 12 responded: “I’ve seen him since day 1.” … * * *
Forensic examination of her cell phone revealed that juror number 12 had selectively deleted scores of messages or parts thereof and that she had deleted her entire web browsing history. At the hearing, juror number 12 was unable to provide any explanation for why she had done that. * * *
We observe that, had this juror’s misconduct been discovered during voir dire or during the trial, rather than after the verdict, the weight of authority under CPL 270.35 would have compelled her discharge on the ground that she was grossly unqualified and/or had engaged in misconduct of a substantial nature … . Here, due to juror number 12’s flagrant failure to follow the court’s instructions and her concealment of that substantial misconduct, defendant, through no fault of his own, was denied the opportunity to seek her discharge during trial on the ground that she was grossly unqualified and/or had engaged in substantial misconduct. People v Neulander, 2018 NY Slip Op 04925, Fourth Dept 6-29-18
CRIMINAL LAW (JUROR MISCONDUCT, INCLUDING COMMUNICATIONS WITH THIRD PARTIES AND WEB BROWSING IN VIOLATION OF THE JUDGE’S ADMONITIONS, WARRANTED A NEW TRIAL IN THIS MURDER CASE (FOURTH DEPT))/JURORS (CRIMINAL LAW, (JUROR MISCONDUCT, INCLUDING COMMUNICATIONS WITH THIRD PARTIES AND WEB BROWSING IN VIOLATION OF THE JUDGE’S ADMONITIONS, WARRANTED A NEW TRIAL IN THIS MURDER CASE (FOURTH DEPT))