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THE JURORS IN THIS ATTEMPTED ROBBERY CASE SAW AN INTERNET VIDEO OF DEFENDANT’S CODEFENDANT VIOLENTLY CAUSING A MAN’S DEATH; THE VIDEO HAD NOT BE INTRODUCED OR MENTIONED AT TRIAL; SUPREME COURT SHOULD HAVE GRANTED THE MOTION TO SET ASIDE THE VERDICT (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the defense motion to set aside the verdict based upon juror misconduct should have been granted. The trial court denied the motion after an extensive hearing. The jurors had seen an Internet video of defendant’s codefendant, Lopez, violently causing a man’s death:

“CPL 330.30 (2) authorizes a court to set aside a verdict on the ground of juror misconduct that ‘may have affected a substantial right of the defendant’ and ‘was not known to the defendant prior to the rendition of the verdict.’ If juror misconduct of the kind outlined in CPL 330.30 (2) is found, the court is not to engage in a separate harmless error analysis. However, ‘[a]bsent a showing of prejudice to a substantial right,’ CPL 330.30 (2) is not implicated in the first place. As such, ‘[e]ach case must be examined on its unique facts to determine the nature of the misconduct and the likelihood that prejudice was engendered'” … .

Here, the jurors observed an Internet video of defendant’s codefendant, Lopez, violently causing a man’s death. The video did not appear in evidence and there was no testimony or mention of the video at trial. The video created a substantial risk of prejudicing the verdict as it permitted jurors to perceive the codefendant as having a propensity for violence, and then to perceive that same propensity to apply to defendant through a guilt-by-association chain of reasoning. People v Santana, 2021 NY Slip Op 06329, First Dept 11-16-21

 

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