                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 10, 2015                   106933
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

TIMOTHY BECKINGHAM,
                    Appellant.
________________________________


Calendar Date:   October 22, 2015

Before:   Peters, P.J., Garry, Rose and Clark, JJ.

                             __________


     Andrea G. Hirsch, New York City, for appellant.

      John M. Muehl, District Attorney, Cooperstown (Michael F.
Getman of counsel), for respondent.

                             __________


Peters, P.J.

      Appeal, by permission, from an order of the County Court of
Otsego County (Burns, J.), entered July 14, 2014, which denied
defendant's motion pursuant to CPL 440.10 to vacate the judgment
convicting him of the crime of manslaughter in the first degree,
after a hearing.

      Following a jury trial, defendant was convicted of
manslaughter in the first degree in connection with the death of
his wife. Upon his direct appeal, we affirmed (57 AD3d 1098
[2008], lv denied 13 NY3d 742 [2009]). He thereafter moved
pursuant to CPL 440.10 to vacate the judgment of conviction on
the basis that, among other things, a juror was subjected to
improper outside influence. Defendant specifically claimed that,
while his trial was ongoing, Eric Ashley, a sheriff's deputy
                              -2-                106933

assigned to the courthouse, made improper comments concerning
defendant's guilt to a juror, who was Ashley's mother-in-law.
County Court summarily denied the motion as well as defendant's
subsequent motion to renew. This Court reversed, finding that
defendant submitted sufficient evidence to warrant a hearing on
the jury tampering issue (116 AD3d 1298 [2014]). After a
hearing, County Court again denied defendant's motion and, with
our permission, defendant appeals.

      Defendant initially claims that the relationship between
Ashley and the juror rendered such juror disqualified from
serving. Even if defendant had preserved this argument by
raising it in his postconviction motion (see People v Nusbaum,
222 AD2d 723, 724 [1995], lv denied 87 NY2d 1023 [1996]), the
record reveals that the juror specifically disclosed this
relationship to County Court during voir dire. Inasmuch as this
claim is based upon facts contained in the record and could have
been, but was not, raised on defendant's direct appeal from his
judgment of conviction, it is not the proper subject of a CPL
440.10 motion (see CPL 440.10 [2] [c]; People v Bruno, 97 AD3d
986, 986-987 [2012], lv denied 20 NY3d 931 [2012]; People v
Stevens, 95 AD3d 1451, 1452 [2012], lv denied 19 NY3d 1029
[2012]).

      At the hearing on defendant's claim of improper outside
influence, Ashley's two adult daughters each testified that, at a
family dinner on some unspecified date and in the presence of the
juror, Ashley stated his belief that defendant was guilty.
According to the older daughter, Ashley then urged the juror to
tell the other members of the family who were present that
defendant was guilty, in response to which the juror stated, "I
can't be hearing this right now." The juror, on the other hand,
consistently affirmed in response to repeated questioning that
she did not discuss defendant's case with anyone during the week-
long trial,1 nor did she hear anyone discuss the case in her
presence. Noting her obligations as a juror not to discuss the


    1
        County Court took judicial notice of the fact that jury
selection in defendant's trial began on Monday, March 6, 2006 and
a verdict was rendered on Friday, March 10, 2006.
                                -3-              106933

case with anyone, the juror stated that she made it a point not
to see Ashley during the trial and that, other than providing him
with a ride home one evening,2 she had no contact with him during
that time. According to the juror, outside influences played no
part in her decision-making process, and her verdict was
predicated solely upon the evidence presented at trial. The
conflicting testimony presented an issue of credibility for
County Court to resolve, which assessment is "entitled to great
deference on appeal" (People v Bodah, 67 AD3d 1195, 1196 [2009],
lv denied 14 NY3d 838 [2010] [internal quotation marks and
citation omitted]; accord People v VanDeusen, 129 AD3d 1325, 1327
[2015], lv denied 26 NY3d 972 [2015]). As the court's decision
to credit the juror's testimony is amply supported by the record,
we decline to disturb it (see People v Bodah, 67 AD3d at 1196).

      Finally, defendant's actual innocence claim, which we
previously rejected (116 AD3d at 1299), is not properly before us
on this appeal (see CPL 470.50; 22 NYCRR 800.14; see generally
Matter of Hoffler v Jacon, 72 AD3d 1183, 1186 n 4 [2010], appeal
dismissed 15 NY3d 768 [2010], lv denied 15 NY3d 872 [2010]).

        Garry, Rose and Clark, JJ., concur.




    2
        The juror's act of driving Ashley home from the
courthouse, without more, is not misconduct so inherently
prejudicial as to require reversal (see People v White, 79 AD3d
1460, 1463-1464 [2010], lv denied 17 NY3d 803 [2011]; People v
Turner, 210 AD2d 445, 445-446 [1994], lv denied 85 NY3d 915
[1995]; see also State v Le Grand, 442 NW2d 614, 615-616 [Ct App
Iowa 1989]; People v Butler, 714 So 2d 877, 893-894 [Ct App La
1998]; compare Turner v Louisiana, 379 US 466 [1965]).
                        -4-                  106933

ORDERED that the order is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
