THE JURY FOUND THE DEFENDANT SEX OFFENDER DID NOT SUFFER FROM A MENTAL ABNORMALITY WHICH AFFECTED HIS ABILITY TO CONTROL HIS BEHAVIOR AND WAS THEREFORE ENTITLED TO RELEASE; UPON THE STATE’S MOTION THE VERDICT WAS SET ASIDE; THE APPELLATE DIVISION REVERSED FINDING THAT THE STATE WAS NOT PREJUDICED BY ALLEGED JUROR MISCONDUCT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined the sex offender civil management verdict, which found defendant did not suffer from a mental abnormality and was therefore entitled to release, should not have been set aside. The state argued the jury foreperson’s telling the jury that, according to the foreperson’s father, “if inmates wanted to do something in prison they could do it” constituted jury misconduct. The remark was relevant to the expert testimony about the ways an inmate can act out sexually. The defendant argued he had not been cited for sexual misbehavior during his 30 years in prison, so the evidence he could have acted out was relevant to his ability to control his behavior:

… [W]e conclude that petitioner [the state] was not prejudiced by the foreperson’s failure to disclose during voir dire that his father previously worked as a correction officer… . We note that several of the jurors in this case either worked in prison or had close relations who worked as correction officers or in law enforcement. Neither party seems to have considered that to have been a disqualifying attribute because those jurors were selected to serve on the jury. Indeed, because the trial was held in the shadow of Auburn Correctional Facility, it would have been difficult for the parties to select 12 qualified jurors with no connection to the prison. Petitioner’s attorney was well aware of that fact and seized upon it during summation, urging the jurors to draw upon their knowledge of the internal workings of prisons in order to decide the case. Petitioner had every reason to believe that a jury packed with prison employees and their relations would likely return a verdict unfavorable to the convicted offender. Petitioner cries foul only because its strategy backfired. Matter of State of New York v Donald G., 2020 NY Slip Op 04716, Fourth Dept 8-20-20