CPL 330.30 MOTION ALLEGING JUROR MISCONDUCT DURING DELIBERATIONS, I.E. CONDUCTING A REENACTMENT, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the Criminal Procedure Law 330.30 motion alleging misconduct during jury deliberations should not have been denied without a hearing. The defendant was charged with menacing a police officer and whether the defendant heard the announcement that the people knocking on his door were deputy sheriffs was a critical issue. Defense counsel learned after the trial that the jurors had conducted a reenactment in the jury room to determine whether defendant heard the sheriffs:

… [I]n support of the motion, defendant submitted the affirmation of his attorney. Defendant’s attorney alleged that, during post-verdict discussions with the jury, he learned that the jurors had attempted during their deliberations to determine whether defendant was aware that the people knocking at his door were sheriff’s deputies by using the bathroom door in the deliberation room to reenact the moment when one of the deputies knocked on defendant’s door and announced the deputies’ presence. The court did not conduct a hearing and instead summarily denied the motion, ruling that, although the alleged jury reenactment constituted a conscious, contrived experiment that placed before the jury evidence not introduced at trial, the experiment was not directly material to any critical point at issue. That was error.

As defendant correctly contends, whether he could hear the announcement by the deputy was directly material to a critical point at issue in the trial—indeed, to an element of menacing a police officer—i.e., whether defendant “knew or reasonably should have known” that the people at his door were sheriff’s deputies (Penal Law § 120.18 …). We conclude under the circumstances of this case that a hearing is required to ascertain whether and in what manner the alleged reenactment occurred, and whether such conduct “created a substantial risk of prejudice to the rights of the defendant by coloring the views of the . . . jur[y]” … . People v Newman, 2020 NY Slip Op 02449, Fourth Dept 4-24-20