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AFTER A SPECTATOR ALERTED THE COURT JURORS HAD BEEN OVERHEARD REFERRING TO THE DEFENDANT IN DEROGATORY TERMS THE TRIAL JUDGE QUESTIONED THE SPECTATOR BUT TOOK NO FURTHER ACTION, MATTER REMITTED TO THE APPELLATE DIVISION FOR A DETERMINATION WHETHER THE TRIAL JUDGE’S ASSESSMENT OF THE CREDIBILITY OF THE SPECTATOR WAS SUPPORTED BY THE WEIGHT OF THE EVIDENCE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a concurring opinion and a dissenting opinion, reversed the Appellate Division and sent the matter back to the Appellate Division for a factual determination whether the trial judge’s credibility assessment of a spectator who claimed to have overheard jurors speaking about the defendant in derogatory terms was supported by the weight of the evidence. After questioning the spectator the trial judge determined no further inquiry was required. The Appellate Division reversed defendant’s conviction over a dissent:

… [W]e are asked to determine whether the trial court abused its discretion when it chose not to conduct an inquiry of two sworn jurors pursuant to People v Buford (69 NY2d 290 [1987]). Alerted to a complaint by a courtroom spectator that during a break in the trial the spectator allegedly overheard the jurors refer to defendant by a derogatory term, the trial court immediately called the spectator to the stand and elicited sworn testimony regarding her allegation. At the conclusion of the examination, the judge determined that a Buford inquiry was not required based on the testimony provided. We conclude on this record that the trial court made an implied credibility finding that the spectator was not worthy of belief and therefore a Buford inquiry was not warranted. This determination by the trial court was not reviewed by the Appellate Division. It was error for the Appellate Division to opine as to what remedy was warranted in response to the content of the spectator’s allegation, without determining whether the allegation was credible in the first instance. Accordingly, we reverse the Appellate Division order and remit the case to that Court to exercise its own fact-finding power to consider and determine whether the trial court’s finding as to the spectator’s credibility was supported by the weight of the evidence. * * *

If, on remittal, the Appellate Division finds, upon its own factual review, that the record supports the trial court’s determination that the spectator lacked credibility, no further action was required. If the Appellate Division finds that the credibility determination was not supported, it must determine whether the trial court abused its discretion in not taking further action … . … [A] credible allegation that a juror is grossly unqualified to serve or engaged in substantial misconduct within the meaning of CPL 270.35 cannot be ignored by the trial court, and failure to appropriately remedy the matter is reversible error. People v Kuzdzal, 2018 NY Slip Op 03304, CtApp 5-8-18

​CRIMINAL LAW (JURORS, AFTER A SPECTATOR ALERTED THE COURT JURORS HAD BEEN OVERHEARD REFERRING TO THE DEFENDANT IN DEROGATORY TERMS THE TRIAL JUDGE QUESTIONED THE SPECTATOR BUT TOOK NO FURTHER ACTION, MATTER REMITTED TO THE APPELLATE DIVISION FOR A DETERMINATION WHETHER THE TRIAL JUDGE’S ASSESSMENT OF THE CREDIBILITY OF THE SPECTATOR WAS SUPPORTED BY THE WEIGHT OF THE EVIDENCE (CT APP))/JURORS (CRIMINAL LAW, BIAS, AFTER A SPECTATOR ALERTED THE COURT JURORS HAD BEEN OVERHEARD REFERRING TO THE DEFENDANT IN DEROGATORY TERMS THE TRIAL JUDGE QUESTIONED THE SPECTATOR BUT TOOK NO FURTHER ACTION, MATTER REMITTED TO THE APPELLATE DIVISION FOR A DETERMINATION WHETHER THE TRIAL JUDGE’S ASSESSMENT OF THE CREDIBILITY OF THE SPECTATOR WAS SUPPORTED BY THE WEIGHT OF THE EVIDENCE (CT APP))/APPEALS (CRIMINAL LAW, AFTER A SPECTATOR ALERTED THE COURT JURORS HAD BEEN OVERHEARD REFERRING TO THE DEFENDANT IN DEROGATORY TERMS THE TRIAL JUDGE QUESTIONED THE SPECTATOR BUT TOOK NO FURTHER ACTION, MATTER REMITTED TO THE APPELLATE DIVISION FOR A DETERMINATION WHETHER THE TRIAL JUDGE’S ASSESSMENT OF THE CREDIBILITY OF THE SPECTATOR WAS SUPPORTED BY THE WEIGHT OF THE EVIDENCE (CT APP))

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