        SUPREME COURT OF THE STATE OF NEW YORK
          Appellate Division, Fourth Judicial Department

1110
KA 11-00536
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TIMOTHY L. JERGE, DEFENDANT-APPELLANT.


THOMAS THEOPHILOS, BUFFALO, FOR DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY, FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (Larry M.
Himelein, J.), rendered March 14, 2011. The judgment convicted
defendant, upon a jury verdict, of sexual abuse in the second degree,
course of sexual conduct against a child in the second degree and
endangering the welfare of a child.

     It is hereby ORDERED that the judgment so appealed from is
reversed on the law and a new trial is granted.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, sexual abuse in the second degree
(Penal Law § 130.60 [2]) and course of sexual conduct against a child
in the second degree (§ 130.80 [1] [b]). We agree with defendant that
County Court erred in denying his motion to set aside the verdict
based on juror misconduct.

     CPL 330.30 provides in relevant part that a court may, upon
motion of the defendant, set aside a verdict on the ground that
“during the trial there occurred, out of the presence of the court,
improper conduct by a juror . . ., which may have affected a
substantial right of the defendant and which was not known to the
defendant prior to the rendition of the verdict” (CPL 330.30 [2]). As
a general rule, “a jury verdict may not be impeached by probes into
the jury’s deliberative process; however, a showing of improper
influence provides a necessary and narrow exception to the general
proposition” (People v Maragh, 94 NY2d 569, 573; see People v Brown,
48 NY2d 388, 393; People v Scerbo, 59 AD3d 1066, 1068, lv denied 12
NY3d 821). Improper influence encompasses “even well-intentioned jury
conduct which tends to put the jury in possession of evidence not
introduced at trial” (Brown, 48 NY2d at 393).

     “Of course, not every misstep by a juror rises to the inherently
prejudicial level at which reversal is required automatically” (id. at
394). Rather, “[e]ach case must be examined on its unique facts to
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determine the nature of the misconduct and the likelihood that
prejudice was engendered” (People v Clark, 81 NY2d 913, 914; see
Scerbo, 59 AD3d at 1068). Juror misconduct constitutes reversible
error where “(1) jurors conduct[ ] personal specialized assessments
not within the common ken of juror experience and knowledge (2)
concerning a material issue in the case, and (3) communicat[e] that
expert opinion to the rest of the jury panel with the force of
private, untested truth as though it were evidence” (Maragh, 94 NY2d
at 574; see People v Santi, 3 NY3d 234, 249).

     Here, the evidence at the post-trial hearing on defendant’s CPL
330.30 motion established that two jurors interjected their
professional knowledge into the jury deliberations by voicing
professional opinions that were not the subject of expert testimony at
trial (see Maragh, 94 NY2d at 575-576). The subject jurors -- a
caseworker employed by a county department of social services (DSS)
with a bachelor’s degree in social work and a licensed substance abuse
counselor with a bachelor’s degree in human services -- conveyed to
the rest of the jury panel that they had professional experience
working with or counseling child victims of sexual abuse. According
to the two jurors who testified at the hearing concerning the subject
jurors, the DSS caseworker advised the jury that she worked in a child
protective capacity. One of the testifying jurors recalled that, when
members of the jury voiced concerns about the victim’s credibility
based upon, inter alia, her inability to recall dates or details about
the sexual abuse, the delay in reporting, and the victim’s failure to
avoid defendant, the subject jurors made statements to the effect that
“we deal with this every day,” and “this is the pattern of how these
things normally take place.” That juror explained that “it was a lot
like [the subject jurors] were testifying in the jury room,” and he
expressly testified that he was swayed by the opinions of the subject
jurors in voting to convict defendant. The other testifying juror
similarly recalled that, when members of the jury questioned the
victim’s credibility, the subject jurors responded, “that is how a
sexually abused victim would act and that’s normal behavior.” She
testified that the subject jurors said that it was “normal” for sexual
abuse victims to “block . . . out” the abuse and that, as a result,
“they wouldn’t be able to remember” specific dates, times and places.
According to that juror, one of the subject jurors went so far as to
tell the jury that, when he had worked with child victims of sexual
abuse, “this is how they would act.” The juror testified that she
changed her vote from acquittal to conviction based on the opinions of
the subject jurors.

     In denying defendant’s CPL 330.30 motion, the court erred in
concluding that it was “common knowledge” that victims of sexual abuse
may both delay reporting and be unable to recall specifics of the
abuse. The behavior and response of a victim of sexual abuse is “not
within the common ken of juror experience and knowledge” (Maragh, 94
NY2d at 574; see People v Taylor, 75 NY2d 277, 289). Indeed, it is
not uncommon for courts to permit expert testimony on precisely the
subject at issue here, i.e., the behavior of a victim of sexual abuse
(see e.g. People v Carroll, 95 NY2d 375, 387; Taylor, 75 NY2d at 289;
People v Torres, 78 AD3d 866; People v Gregory, 78 AD3d 1246, 1247, lv
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denied 16 NY3d 831; People v Wellman, 166 AD2d 302, lv denied 78 NY2d
958).

     We thus agree with defendant that the subject jurors offered
improper professional opinions that were not the subject of expert
testimony and were not subject to cross-examination, thereby depriving
defendant of a fair trial (see Maragh, 94 NY2d at 575-576; People v
Stanley, 87 NY2d 1000, 1001-1002). Indeed, the subject juror comments
in this case are particularly problematic because they stated not only
that sexual abuse victims may delay reporting or be unable to recall
specifics of the abuse, which may be the proper subject of expert
testimony (see Gregory, 78 AD3d at 1247), but they also went a step
further and opined that, “based upon their professional experience,
[the victim] acted like a victim of sexual abuse.” That was improper
(see Carroll, 95 NY2d at 387).

     In light of our determination that reversal is required, we need
not address defendant’s remaining contentions.

     All concur except FAHEY, J., who dissents and votes to modify in
accordance with the following Memorandum: I respectfully dissent
because I do not agree with the majority that County Court erred in
denying defendant’s post-trial motion pursuant to CPL 330.30 (2)
seeking to set aside the verdict based on juror misconduct. I dissent
insofar as the majority concludes that reversal is required on that
ground. Nevertheless, I would vote to modify the judgment as a matter
of discretion in the interest of justice, and on the law, by reversing
that part convicting defendant of sexual abuse in the second degree
under count two of the indictment inasmuch as that count was rendered
duplicitous by the testimony at trial, as I shall discuss herein. I
would dismiss that count without prejudice to the People to re-present
any appropriate charge under that count to another grand jury.

     “Generally, a jury verdict may not be impeached by probes into
the jury’s deliberative process,” but CPL 330.30 embodies the “narrow
exception to [that] general proposition” (People v Maragh, 94 NY2d
569, 573). That statute provides, in relevant part, that the court
may, upon motion of the defendant, set aside the verdict on the ground
“[t]hat during the trial there occurred, out of the presence of the
court, improper conduct by a juror, or improper conduct by another
person in relation to a juror, which may have affected a substantial
right of the defendant and which was not known to the defendant prior
to the rendition of the verdict” (CPL 330.30 [2]).

     Here, at the hearing on his CPL 330.30 motion, defendant
presented the testimony of two jurors. The first testifying juror
stated on direct examination that three other jurors, i.e., juror Nos.
27, 68 and 98 (collectively, subject jurors), said “we deal with this
every day” and “this is the pattern of how these things normally take
place.” Based on the context of the first juror’s testimony, the
testimony appears to indicate that the subject jurors were familiar
with victims of sexual abuse. Juror No. 27 worked as the head
strength and conditioning coach in a university athletic department,
juror No. 68 was a caseworker with the Cattaraugus County Department
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of Social Services, and juror No. 98 worked as a “substance abuse,
mental health counselor.” The first testifying juror did not state
that the subject jurors had indicated that they counseled victims of
sexual abuse, but maintained that the subject jurors said that their
knowledge was based upon their professional backgrounds in dealing
with such issues. The first testifying juror also indicated that his
vote was influenced by the comments of the subject jurors during
deliberations, and that he was the last juror to vote to convict
defendant.

     The cross-examination of the first testifying juror confirmed
that he was influenced by the comments of the subject jurors, and
explained the basis, or lack thereof, for his reliance on those
jurors. The first testifying juror acknowledged that he learned of
the backgrounds of the subject jurors during voir dire, and indicated
that he “just assumed” that one of the opinions expressed by juror No.
68 during deliberations “was because of her professional experience.”
Indeed, the first testifying juror agreed that the subject jurors
never indicated during deliberations that they worked with or
counseled sexual abuse victims, and he concluded his testimony on
cross-examination with an expression of remorse over having been the
last of the jurors to change his mind and vote to convict defendant.

     For her part, the second testifying juror stated at the hearing
that juror Nos. 68 and 98 had indicated during deliberations that they
had a specialized background in sexual abuse issues and had worked
with sexually abused children. The second testifying juror indicated
that assurances of juror Nos. 68 and 98 assuaged her concerns with
parts of the victim’s testimony, and that she eventually relied on the
knowledge and opinions of juror Nos. 68 and 98 in changing her vote
from acquittal to conviction.

     On cross-examination, however, the second testifying juror, who
was not a holdout juror, was equivocal as to whether juror Nos. 68 and
98 influenced her vote. The second testifying juror denied “saying
that [she] gave somebody’s opinion more credibility than somebody
else’s,” and contended that she “ha[s] [her] own mind,” “listened”
during deliberations and “took [the opinion in question] into [her]
own mind and processed it.”

     Subsequent to the testimony of defendant’s witnesses at the CPL
330.30 hearing, and at the People’s request, the court denied the
motion on the ground that defendant failed to meet his burden of proof
even in the absence of testimony from witnesses yet to be presented by
the People. The court later issued a written decision in which it
determined “that the complained of conduct . . . does not rise to the
level of juror misconduct.” That conclusion was based, at least in
part, on the court’s finding that the first testifying juror “admitted
that he regretted his verdict and conceded that he did not hear
specific reference to any one juror’s professional experience.” In
view of its citations to, inter alia, People v Rodriguez (100 NY2d
30), People v Robinson (1 AD3d 985, lv denied 1 NY3d 633, 2 NY3d 805)
and People v Stevens (275 AD2d 902, lv denied 96 NY2d 807), and its
finding that the second testifying juror “adamantly said she made up
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her own mind on the verdict,” the court also appeared to conclude that
the conduct at issue did not prejudice defendant (cf. People v
Concepcion, 17 NY3d 192, 195).

     “In order to prevail on [his] motion, defendant was required to
establish ‘by a preponderance of the evidence that improper conduct by
a juror prejudiced a substantial right of’ defendant” (People v
Carmichael, 68 AD3d 1704, 1705, lv denied 14 NY3d 798; see CPL 330.40
[2] [g]). “The trial court is invested with discretion and post[-
]trial fact-finding powers to ascertain and determine whether the
activity during deliberations constituted misconduct and whether the
verdict should be set aside and a new trial ordered” (Maragh, 94 NY2d
at 574; see Rodriguez, 100 NY2d at 35), and, under these
circumstances, I cannot agree with the majority that the disputed
activity during deliberations warrants impeachment of the verdict.

     Put simply, the testimony of the first testifying juror, who
seemed to have second thoughts about the verdict and who could not
state that any of the subject jurors had indicated during
deliberations that they worked with or counseled sexual abuse victims,
does not support a finding of juror misconduct (see generally People v
Santi, 3 NY3d 234, 249-250). “The court’s determination that there
was no misconduct . . . must be afforded great weight” (People v
Brown, 278 AD2d 920, lv denied 96 NY2d 781), and there is no reason to
disturb it on the basis of the testimony of the first testifying
juror.

     Even assuming, arguendo, that the testimony of the second
testifying juror establishes juror misconduct (see generally Santi, 3
NY3d at 249; Maragh, 94 NY2d at 574), I conclude under these
circumstances there was no showing of prejudice to a “substantial
right” of defendant as a result of that misconduct (CPL 330.30 [2];
see Carmichael, 68 AD3d at 1705-1706). Inasmuch as the second
testifying juror, who was not a holdout juror, admitted on cross-
examination that she had an independent mind and thought process with
respect to the verdict, I cannot conclude that defendant established
that the second testifying juror based her verdict on something other
than the evidence presented at trial (cf. Carmichael, 68 AD3d at 1705-
1706; see generally Robinson, 1 AD3d at 986). Thus, in my view,
defendant did not meet his burden of showing “by a preponderance of
the evidence” that the conduct at issue prejudiced a substantial right
of defendant (CPL 330.40 [2] [g]; see Rodriguez, 100 NY2d at 35;
Carmichael, 68 AD3d at 1705-1706), and there is no reason to disturb
the court’s determination on that basis (see Brown, 278 AD2d 920).

     I turn now to the remaining issues not addressed by the majority
in light of its determination with respect to defendant’s post-trial
motion pursuant to CPL 330.30 (2). Defendant challenges the procedure
employed by the court in responding to a jury note, specifically
contending that the court erred in issuing supplemental instructions
to the jury in his absence. Inasmuch as defense counsel was given
notice of the note, its contents and the court’s intended response
thereto, “[d]efendant therefore was required to register an objection
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in order to preserve for our review his challenge to the procedure
employed by the court in responding to the jury note[], ‘at a time
when any error by the court could have been obviated by timely
objection’ ” (People v Rivera, 83 AD3d 1370, 1370-1371, quoting People
v Starling, 85 NY2d 509, 516; see People v Kadarko, 14 NY3d 426, 429).
I would not exercise my power to address that contention as a matter
of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Contrary to defendant’s further contention, defense counsel was not
ineffective in failing to object to the procedure employed by the
court in responding to the note. Defendant failed “ ‘to demonstrate
the absence of strategic or other legitimate explanations’ for
[defense] counsel’s alleged shortcomings” (People v Benevento, 91 NY2d
708, 712, quoting People v Rivera, 71 NY2d 705, 709; see generally
People v Baldi, 54 NY2d 137, 147).

     Defendant failed to preserve for our review his contention that
the court’s Allen charge was coercive, having failed to object to the
charge on that ground (Allen v United States, 164 US 492; see People v
Vassar, 30 AD3d 1051, lv denied 7 NY3d 796). In any event, that
contention lacks merit (see People v Roman, 85 AD3d 1630, 1631, lv
denied 17 NY3d 821). “Furthermore, ‘[b]ecause the Allen charge was
not improper, the defendant’s ineffective assistance of counsel claim,
[insofar as it is] based . . . on his attorney’s failure to object to
the charge, is without merit’ ” (id.).

     Defendant also failed to preserve for our review his contention
that the indictment is duplicitous (see People v Becoats, 17 NY3d 643,
___; People v Heard, 72 AD3d 1630, lv denied 15 NY3d 852). In any
event, that contention is moot with respect to counts one and four of
the indictment inasmuch as defendant was acquitted of those counts
(see People v Haberer, 24 AD3d 1283, lv denied 7 NY3d 756, 848). I
would, however, exercise my power to review defendant’s contention
with respect to count two of the indictment as a matter of discretion
in the interest of justice (see CPL 470.15 [6] [a]), because I agree
with defendant that count two, charging him with sexual abuse in the
second degree (Penal Law § 130.60 [2]), was rendered duplicitous by
the testimony at trial (see People v Bennett, 52 AD3d 1185, 1186, lv
denied 11 NY3d 734). I would therefore modify the judgment
accordingly, as set forth herein (see id.; People v Bracewell, 34 AD3d
1197, 1198-1199).

     Finally, I have reviewed defendant’s remaining contentions and
conclude that none requires reversal or further modification of the
judgment.




Entered:   December 23, 2011                    Frances E. Cafarell
                                                Clerk of the Court
