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THE JUROR’S SIMULATION OF THE STABBING IN THE JURY ROOM DID NOT CONSTITUTE JUROR MISCONDUCT (FIRST DEPT).

The First Department determined a juror’s use of a piece of cardboard to simulate a stabbing motion with a knife (during deliberations) did not constitute juror misconduct:

… [T]he juror … used a piece of cardboard to simulate a knife and briefly made a stabbing motion in an effort to demonstrate or reenact the crime at issue. Based on the evidence adduced at the hearing, this conduct likewise did not constitute “improper conduct” within the meaning of CPL 330.30(2). “It is well recognized that jurors may conduct a jury room crime reenactment or demonstration provided it involves no more that the jurors’ application of everyday experiences, perceptions and common sense to the evidence” … . In light of the trial evidence and the nature of the demonstration, the juror did not become an unsworn witness, or introduce new facts into the deliberations … . Given the location, simplicity, and brief duration of the demonstration … , as well as the hearing testimony of the jurors who testified that the demonstration had no effect on their deliberations … , the demonstration did not prejudice a substantial right of defendant …. People v Hubbard, 2022 NY Slip Op 00017, First Dept 1-4-22

 

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