SUPREME COURT OF THE STATE OF NEW YORK  APPELLATE DIVISION: FIRST DEPARTMENT

THE PEOPLE OF THE STATE OF NEW YORK, Appellant,

-against-

MARTIN DEVERAUX AND MICHAEL FORDE,

Defendants-Respondents

BRIEF FOR APPELLANT

PRELIMINARY STATEMENT

The People appeal from an order of the Supreme Court of the State of New York rendered April 26, 2004 (Atlas, J.). By that order, the court below, pursuant to Criminal Procedure Law § 330.30(2), set aside a verdict convicting defendants of Bribe Receiving by a Labor Official, Penal Law § 180.15, under New York County Indictment No. 5544/00. Defendants are now at liberty.

QUESTION PRESENTED

Whether several incidents constituted juror misconduct that affected a substantial right of defendants and deprived them of a fair trial? The court below answered yes.

INTRODUCTION

Defendants Michael Forde and Martin Devereaux, both labor union officials, were convicted for taking a bribe from a building contractor so that he could get away with using non-union workers on a Manhattan hotel renovation project. In March of 1998, defendant Michael Forde was the president of Local 608 of the Carpenters Union and defendant Martin Deveraux was a business agent for the local. Local 608's geographic jurisdiction included New York County, and in particular the area of Manhattan where the Park Central Hotel was located. During March, S & S Contractors, a union contractor based in New Jersey and run by Sean Richard, started a renovation project at the hotel. In order to employ non-union carpenters in violation of his collective bargaining agreement and increase his profit, Richard, who was affiliated with organized crime figures in New Jersey and New York, offered defendants a $50,000 bribe. In late April 1998, Richard and an associate met with defendants at a Hooters restaurant and gave them $10,000 in cash as a part payment on that bribe. On August 24, 2000, defendants were indicted for, inter alia, Bribe Receiving by a Labor Official, Penal Law § 180.15, New York (County Indictment No. 5544/00).

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Defendants' trial began on April 12, 2004, and the case was submitted to the jury on April 26, 2004. On Tuesday, April 27^th the jury returned guilty verdicts as to each defendant for Bribe Receiving by a Labor Official. Then, defendants moved to set aside the verdict claiming that the trial evidence was legally insufficient. See CPL § 330.30(1). After motion papers were filed, the court held oral argument on August 3, 2004. At the conclusion of argument, the court reserved decision on the motion. Then, defendants filed a second motion seeking to set aside the verdict (Defendants' Motion: A4). This time defendants claimed that there had been improper conduct by the jurors. See § CPL 330.30(2). The motion was supported by an affidavit, dated August 3, 2004, from alternate juror 3, Robert Bartow, who, inter alia, claimed:

throughout the trial of this case, and prior to deliberations [he] witnessed numerous examples of my fellow jurors discussing trial testimony, the credibility of witnesses, and the defendants' guilt or innocence" and "jurors reading and discussing newspaper articles about the case (Bartow Affidavit in Support of Defendants' Motion: All ¶3).

On September 8, 2004 the People submitted a memorandum of law in opposition to defendants' motion (People's Memorandum: A18), and after a brief conference on the matter (Calendar Call, September 8, 2004: A60-67), the court asked all parties to submit suggestions about the scope of a hearing on the motion. In the reply memorandum, among other things, the People argued that none of the claimed misconduct, even if true, either singularly or cumulatively, affected a substantial right of defendants to a fair trial (People's Reply

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Memorandum: A21). Thereafter the court advised the parties that it would summon all fifteen jurors, would allow inquiry into six areas of possible misconduct, and permit counsel to pose leading questions to the jurors (See Calendar Call, November 4, 2004: A71; Minutes of the C.P.L. § 330(2) Hearing, November 18, 2004: A73-74).¹

On November 18, 2004, fourteen of the fifteen sworn jurors appeared in Part 33 and were questioned under oath regarding the allegations made by alternate juror 3, Robert Bartow. The sole juror who was not present on the 18th was Stephen Fried, Juror 5. Fried had a planned vacation that day, and instead was questioned in court a few weeks later, on December 6, 2004. Alternate Juror 3, Robert Bartow was recalled for continued cross examination and the People offered two exhibits: a print out of an e-mail that Bartow had sent to Michael Dowd, Deveraux's attorney, on May 17, 2004, which forwarded a series of e-mail messages the other jurors had sent each other after the verdict (A358; People's Exhibit 2: A450-461); and a tape recording of a thirty minute conversation that Bartow had with a private investigator working for defendants on April 29, 2004 in which Bartow had made no claims of misconduct by any of the jurors



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¹ Subsequent references to the C.P.L. § 330.30(2) Hearing appear as "A:____." Unless
otherwise indicated, parenthetical references are citations to the post verdict hearing.

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(People's Exhibit 3²). At the conclusion of the hearing on December 6, 2004, the court set a schedule for memoranda of law and replies to be submitted (A376). On December 17, 2004 each party simultaneously served their memoranda (A462; A482), and on December 21, 2004 the People served a reply memorandum (A490).
On April 26, 2004, the trial court issued a 25 page written decision setting aside the verdict on grounds of jury misconduct (Decision: A500-524).³ In essence, although the court recognized that the motives of alternate juror 3 (Robert Bartow) were suspect (Decision: A505), it nevertheless concluded that there had been several incidents of juror misconduct., the "cumulative effect" of which made it "impossible for [the court] to conclude that the defendants were not substantially prejudiced" (Decision: A524). But as the hearing evidence established, all of the jurors were unequivocal that they had based their verdict on the evidence and nothing else. Consequently, defendants failed to meet their burden of establishing that these incidents, either individually, or cumulatively, affected their right to a fair trial and impartial assessment of the facts during their deliberations. For this reason, the lower court's decision should be reversed.
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² The copy of the tape introduced at the hearing, as People's Exhibit 3, is being provided to the Clerk's Office pursuant to Rule 600.10(c)(2)(iv).
³ Justice Atlas found the trial evidence legally sufficient and denied defendants' motion to set aside the verdict pursuant to C.P.L. § 330.30(1)

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THE EVIDENCE AT THE HEARING

A. Claims Regarding Discussion of Witness Testimony, Credibility of Witnesses and Comments about defendants Prior to Deliberations.

On April 29, 2004, Alternate Juror 3, Robert Bartow, had a thirty minute conversation with defense investigator Bill Majeski (People's Exhibit 3, A438439; A444-445). During this conversation, Bartow did not describe any misconduct by any of the jurors. Bartow stated that, after the verdict, the jurors had been "talking to each other," that he had received e-mail correspondence, and that he had "gotten the whole scoop and low down" (People's Exhibit 3). Bartow added

It was a really good group of people that was there. Nobody--You know, we went out, we had really great lunches all around Tribeca and Chinatown, and stuff, not a, no one talked about the case at all. They talked about performance of either the ADA or one of the defense lawyers, but urn--as far as um--the actual case we didn't discuss it because Judge Atlas said not to and we did exactly what judge Atlas said

(People's Exhibit 3). During that conversation, Bartow also said he felt that defendants did not receive a fair trial (Bartow: A435), and believed they were not guilty (Bartow: A436). He was "shocked" at the outcome because in his view there was no evidence (Bartow: A437-438). Bartow also admitted that "didn't follow the logic of the jury's verdict" (Bartow: A438), and he was surprised that the judge didn't' send the jury back to continue deliberating

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when they returned a guilty verdict (Bartow: A441-442). Bartow also told Majeski "You know, like I said, I'm a bit disappointed with the outcome. And, you know, I don't know, they didn't appeal, did they?"

On May 17, 2004, Bartow forwarded to Michael Dowd, Deveraux's attorney, a series of e-mails he had received from his fellow jurors after the verdict with the note :"Glad to help if I can, Bob Bartow" (Bartow: A431-432; People's Exhibit 2: A450-461).⁴

On August 3, 2004, months after his first interview with defendants investigator, Bartow claimed in an affidavit that during the trial, Juror 5, Stephen Fried, had stated in his presence and the presence of Juror 4, Robert Mayer, that defendants "were guilty as hell" and that Mayer had agreed (Bartow Affidavit: A11). At the hearing, Bartow testified that Fried had said that defendants "were obviously guilty" (Bartow: A92), and suggested that because of Mayer's proximity to Fried, Mayer must have heard Fried's comment (Bartow: A92-93). According to Bartow, Mayer agreed with Fried and "just might have said yes" (Bartow: A93). But Bartow admitted he could not recall Mayer affirmatively agreeing with Fried's comment (Bartow: A93). Bartow
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⁴ The e-mails were not contained as exhibits to defendants' motion or attached to Bartow's affidavit. Indeed, in Bartow's August 3^rd Affidavit he swore that he did "not have a present recollection of the contents of the e-mails," other than a comment by Juror Fried that the jury had done the right thing in finding defendants guilty based on their post verdict research of defendants' union and the case. Bartow's affidavit also claimed that he was unable to locate the e-mails and was "presently searching" his database in an attempt to retrieve them (Bartow Aff. A:14, ¶14). Bartow later testified that he meant he could not locate subsequent e-mails he received from jury members (Bartow: A433-434).

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continued, adding Fried had said "these guys are guilty as hell" (Bartow: A93). Bartow also recalled that Fried had made "regular and frequent negative comments about defendants during the course of the trial." Bartow however only recalled two specific statements: that Fried had said he believed defendants were "guilty as hell; and "that Hooters was "the perfect place for these dirty union guys to do that kind of thing" (Bartow: A103-105). Bartow also recalled that shortly after the testimony of a prosecution witness regarding a raid on the Park Central Hotel, that Juror 8, John Bencovich, had referred to the witness as essentially a union policeman, and expressed a view that his actions were correct (Bartow: A106).

On questioning by the prosecutor, Bartow claimed that he first spoke with Bill Majeski - - an investigator for defendants - - several weeks after the verdict (Bartow: A115-116). Bartow maintained that he had not spoken much to Majeski, "it was, maybe, a ten minute conversation" (Bartow: A116-118). Bartow did not remember the questions Majeski had asked him because he did not plan on answering them (Bartow: A119). Several days later, around the first week of June, Bartow spoke to Majeski a second time (Bartow: A119-120). Bartow claimed that at that point, he told Majeski that Fried had discussed defendants' ability to commit the crime, "they could have spent ten thousand dollars in a few minutes" and that, "they were guilty as hell" (Bartow: A132-

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133). Bartow also stated that he had had a third conversation with Majeski but he did not recall the details (Bartow: Al22).

The jury foreperson, Paul Chamblis, disagreed with Bartow's claims. In particular, Chamblis stated that "everyone as a whole was very disciplined about not discussing" the case (Chamblis: A184). Chambliss also testified he did not hear Fried express his views concerning the guilt of defendants (Chamblis: A183).

Juror 10, William Voelkle (Voelkle: A154-155), Juror 6, Daniel Seiffert (Seiffert: A162-164), Juror 11, Charles Curtis (Curtis: A213-216), Alternate Juror 1, Eileen Frescia (Frescia: A194), and Juror 2, Lynne Klenert (Klenert: A239-240) all agreed that there were no pre-deliberation discussions. With the exception of a fleeting reference to the Sopranos, Juror 3, Scott Min, echoed this testimony (Min: A350, A353). Seiffert credited much of this discipline to the foreperson, Chamblis, who "if the conversation . . . strayed into some kind of legal matter, like why wasn't a witness called or something else or, you know, well let's talk about something else . . . and then the conversation went to the weather or sports or something" (Seiffert: A170).

Voelkle, Seiffert, Klenert, Min and Juror 8, John Bencovich, did not recall any of the jurors stating that they believed defendants were guilty (Voelkle: A154-155; Seiffert: A162-164; Klenert: A240; Min: A350; Bencovich: A381). Both Frescia and Alternate Juror 2, Terry Myers, were also unable to

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confirm Bartow's allegations about Juror Fried (Frescia: A194; Myers: A203). One Juror, Curtis actually went so far as to say that he was surprised that the system really does work, commenting that "[he did not] recall anybody having a set opinion prior to deliberations" (Curtis: A214).⁵

Seiffert did not recall Fried saying anything about defendants prior to deliberations (Seiffert: A164). Juror 2, Lynne Klenert, testified that there was no discussion prior to deliberations about Hooters, stating "I don't remember anything of that sort" (Klenert: A239).

Mayer did not recall Fried making any comments about defendants' guilt or innocence, or the credibility of the witnesses. Rather, he recalled Fried saying "look at them they're smiling, I can't believe they're smiling" (Mayer: A299300). Mayer described the comments as jokes, (Mayer: A302-303). Mayer agreed that the so-called "negative comments" by Fried consisted of observations as to defendants smiling, their alcohol use, and maybe just falling asleep (Mayer: A303, A309-310). Mayer recalled Fried' comments were:

looks like he's falling asleep in court, not paying attention. Those kind of comments. I mean, did you notice that, kind of thing. Not necessarily, you know, anything more than that. Just comments about the way people were behaving in court

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5 Juror 9, Terry Steiner, Juror 12, Myrna Sirowitz, and Juror 7, Kimberly Allen, were not asked if Fried had expressed an opinion about defendants' guilt prior to deliberations.

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(Mayer: A310). Mayer recalled Fried making four or five such comments during the course of the trial and added that "most times we either laughed or just kind of let him say what he want[ed] to say" (Mayer: A311). Mayer did not however recall Fried or Bencovich making any reference to Hooters (Mayer: A313). Mayer, did not recall Fried commenting that defendants were "guilty as hell," or that Fried had ever said anything like that (Mayer: A298-299, A302). Mayer added that while Fried might have expressed opinions about defendants, they were innocuous comments like "look at them, they're smiling. Comments like that. Not so much pertaining to the case" (Mayer: A300). Mayer, added "I don't think he definitely said guilty, okay, I think he was saying certain things, one way or another. He made comments like I don't know if I can trust this guy or that guy... [referring to the witnesses]" (Mayer: A299). In addition, Mayer recalled that Bencovich had provided insight on unions and maybe shop steward reports before deliberations (Mayer: A293-295, A296-297), but these comments were not related to corruption (Mayer: A293). They were generic comments entirely unrelated to Bencovich's personal opinions (Mayer: A294), and they were not designed to assist in the evaluation of the testimony. Rather they merely explained what a person's title was and what their role in the union was (Mayer: A294, A296-297), and that the explanation was consistent with the evidence at trial (Mayer: A313).

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Juror 4, Scott Min, did not hear Fried making negative comments about defendants prior to deliberations (Min: A351), but did recall hearing Fried make comments about defense counsel. "[H]e would say they're doing a good job or stuff like that..." (Min: A350). The first time Min heard Fried say that defendants were guilty was during deliberations (Min: A350). He also recalled that Hooters was first discussed during deliberations, not before (Min: A350351).

Juror 7, Kimberly Allen recalled that there were pre-deliberation discussions about unions, but they were limited to acknowledging that throughout the trial there were union members in the audience, and that may have made some jurors uncomfortable (Allen: A321-322).⁶ Allen, however did not compare these individuals to cast members of the Sopranos TV show (Allen: A323).

Bencovich admitted that prior to deliberations he explained to several jurors what the purpose of a shop steward report was and what a shop steward was(Bencovich: A365-367, A377). But Bencovich recalled that any discussion of the reports was confined to deliberations and consisted of describing generic terms (Bencovich: A367-369, A377). And he was unequivocal in his statement that he did not supply the jury with any information that was not in the

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⁶ Allen, identified these individuals as union members because their clothing had symbols of their union affiliation (Allen: A322).

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testimony (Bencovich: A369). Bencovich, did not hear any jurors expressing opinions about the guilt or innocence of defendants prior to deliberations; did not hear Fried make negative comments about defendants prior to deliberations; and did not hear any reference to Hooters prior to deliberations (Bencovich: A381).

Fried recalled that there had been frequent discussions among the jurors before deliberations (Fried: A412). However, he did not offer many specifics, and qualified his statements by reiterating that he and the other jurors were aware of their responsibilities and restrictions with regard to discussing trial testimony (Fried: A338). Fried agreed that some of the discussion could have been about "the performance of the attorneys," "some of the testimony that was heard," (Fried: A412-413, 421). The only specific comment that Fried recalled hearing was something like Hooters was a good place for a payoff to take place (Fried: A415-416). Fried, however, did admit that on a couple of occasions he felt defendants were guilty, but recalled making only one comment to that effect (Fried: A413-414). Specifically, Fried testified that one time, "at lunch" or at the end of the day, he made "some comment," or said "something about my thoughts after a particular testimony, or your or their discussion" (Fried: A422). When asked, "Again, I don't want to pin you down on specific words, it's too long ago. But is it fair to say that at least on a couple of occasions you stated to one or more of your fellow jurors that you felt, at

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least to what you had heard at that point, that defendants were guilty" Fried replied "I guess it's fair to say that" (Fried: A414).

Fried maintained, however, that despite his earlier "thought [that] the defendants were guilty," his "verdict [was] based solely on the evidence and the Judge's charge at the end of the day." (Fried: A422)
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B. Claims Regarding Comments about the Prosecutor

Bartow testified that during many of the recesses that occurred during the trial, Mayer, "expressed unequivocal support for the prosecution's case" and the prosecutor (Bartow: A100-102). Bartow also testified that Mayer's comments would be met with "verbal agreements" from Juror 7, Kimberly Allen, and Juror Fried; that Juror 8 Bencovich would "generally concur" with Mayer's statements; and that Min would "also join in the approbation" (Bartow: a102-103).⁷

Juror 2, Lynne Klenert, did not recall any of her fellow jurors expressing approval for the prosecution witnesses, the prosecution's case or the prosecutor himself during the trial (Klenert: A240-241). Min testified that he did not remember anyone expressing support for the prosecutor or his case. (Min: A348-349). However, he did recall Mayer stating the prosecutor had "pulled a rabbit out of his hat" and that he "just laughed at" the comment
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⁷ Bartow's testimony consisted of agreeing with the leading questions posed by counsel for the defense. Bartow did not specify what these "verbal agreements" or "approbations" consisted of.

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(Min: A348-349). Moreover, when Min was asked whether he or Mayer had judged the prosecutor's performance, he replied "we treated every lawyer fairly. When they made a good point we pointed that out" (Min: A349). Mayer testified that the jurors did not "express support of favor, [or] approval of" the prosecutor or his case (Mayer: A306). He assured the court that he had not stated, nor did he recall that anyone else stated that the prosecutor had "pulled a rabbit out of his hat" (Mayer: A306-307). Fried recalled that they did somewhat evaluate the attorneys' performances, remarking "we had to entertain ourselves somehow" (Fried: A408-409). While Fried did not recall any particular comments regarding the prosecutor's performance, he added "I think at times we were quite proud of what he was doing and how he was coming up with stuff" (Fried: A410).

C. Claims Regarding Articles in the New York Times and Village Voice

In Bartow's April 29^th conversation with defense investigator Bill Majeski he did not recall a Village Voice article being present in the jury room. Indeed, when Majeski suggested that, based upon his conversations with other jurors, that there had been a Village Voice in the jury room during the trial, Bartow replied he thought it was the New York Times, not the VillageVoice. Bartow

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looked at the Times article it after someone showed it to him, but did not claim anyone discussed the article (People's Exhibit 3).⁸

At the hearing, Bartow claimed that, during the trial, Bencovich referred to a New York Times article regarding a recent bricklayers union indictment, and "essentially pass[ed] that news article around" (Bartow: A91). Bartow thought that Bencovich had possibly said there was a similarity between the charges in that case and the type of conduct that defendants Forde and Deveraux were charged with in this case (Bartow: A90-91). Bartow was not sure, but he thought that Bencovich had made reference to the fact that the same organized crime family was involved in the bricklayers case and the case on trial (Bartow: A132). However, Bartow did not recall Bencovich ever saying "these guys [were] guilty despite what the evidence [was]" (Bartow: A144).

Bartow also recalled an instance during the last week of the trial when Min and Mayer were looking at a newspaper together, although he could not tell what newspaper it was, he was sure it was not the New York Times, New York Daily News or New York Post (Bartow: A95-96, Al23). After the verdict Bartow received an e-mail from Allen with a link to the Village Voice website which lead to an article that discussed the case (Bartow: A97-98). The e-mail, which clearly had been sent to other jurors, included a comment by Juror 5
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⁸ Later in the conversation, Bartow told Majeski that he had learned that Bencovich had looked at the Voice article.

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Stephen Fried that "we should be proud as hell we did the right thing" (Bartow: A97).

While, Juror 9, Terry Steiner, testified she too recalled there were copies of the New York Times, The Post, and the Daily News in the jury room during the trial (Steiner: A255), she did not recall any discussion about an article concerning another union indictment (Steiner: A256). When asked whether she remembered Bencovich or any other jurors discussing an article from the New York Times, she replied that she did, but that she was not sure whether this occurred before of after deliberations (Steiner: A257). Steiner knew an article appeared in the Village Voice after the case was over (Steiner: A257-258), but she never observed the article in the jury room (Steiner: A258).

Testifying about the Village Voice article, Juror 12, Myrna Sirowitz, said that at the time of the trial, she knew there was an article, but also knew that jurors should not read it. As far as she was aware, nobody brought the article to the jury room, nor did anyone make any references to it prior to, or during, deliberations (Sirowitz: A279-281). While Sirowitz agreed that another juror had mentioned the article (Sirowitz: A284), the only comment Sirowitz recalled was that the article existed. (Sirowitz: A283). Sirowitz wasn't able to tell whether anyone had read the article, and did not see the article her herself until weeks after the case. (Sirowitz: A284). Sirowitz never heard Bencovich comment about the bricklayers case (Sirowitz: A281).

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Juror 7, Kimberly Allen, testified that, during the trial, she "remembered someone stating that there was a newspaper article referencing this trial, that appeared in some publication" (Allen: A323-325). Allen recalled that someone had merely mentioned that there was a Village Voice article about the trial (Allen: A324-326). Allen added that while people knew about the article, "they were being very strict about not reading it" (Allen: A323-324). Allen did not recall any discussion about newspaper articles regarding charges brought against the bricklayers union for organized crime connections (Allen: A324). Allen was sure, however, that her verdict was based only upon the evidence presented during the trial (Allen: A332). However, she was not sure about the other jurors. During deliberations, someone said that no one ever suspected that the mob would sing. She had never heard that term before and when she later received the Village Voice articled entitled The Mob Sings, she questioned whether the other jurors had been vigilant about not reading the article (Allen: A331-332).

Min never read the Village Voice, but he was aware there was a Village Voice article related to the case (Min: A337-338). At the time the article came out, Min knew jurors talked about it, but he "didn't pay attention to the discussion" (Min: A339). Min observed that the jurors simply commented on the fact that the article existed, but "nobody really showed their opinion" (Min: A340). The title of the article, "A Mob Soprano Sings" sounded familiar (Min:

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A341). However, he never heard it mentioned in the jury room; it was mentioned only in the e-mails sent by jurors after the verdict (Min: A342-343). While unaware of any influence the Village Voice article may have had, Min did recall another juror mentioning a different newspaper article relating to union corruption. He was unable to remember who this juror was (Min: A353-356).

Bencovich testified that he remembered reading something related to another union indictment during the trial, but not an article about this case (Bencovich: A363). Bencovich did not recall any discussion about either article in the jury room (Bencovich: A363-364, A379). Bencovich said he saw the story in a newspaper that was in the jury room (Bencovich: A363-364, A379), although he did not recall which newspaper it appeared in (Bencovich: A364), or who had brought it in (Bencovich: A364, A379). Bencovich specifically denied that he "picked up the article and said, another union job, and threw it down on the table" (Bencovich: A380). Bencovich did not hear anyone use the term "a mob soprano sings," or "mob sings" (Bencovich: A380). The first time he became aware of the article in the Village Voice was the day of the hearing (Bencovich: A380).

Fried recalled a New York Times article that discussed a union racketeering indictment, but did not recall the specifics of what any juror may have said about the article (Fried: A399-401, A416). This was the only article he was aware of during the trial. In fact, Fried did not learn that there had been a

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Village Voice article until after the case was over. He was vaguely familiar with the title of the article, but did not think he had seen a hard copy of the article (Fried: A407). Fried also did not recall Mayer or Min with a copy of the Village Voice, nor did he recall them conferring about any newspaper article in the jury room (Fried: A408).

None of the other jurors recalled there being any discussion about a newspaper article concerning the case or any related case (Voelkle: A153; Seifert: A164-165, A167-168; Chambliss: A181-182; Curtis: A212-213; Mayer: A297-298, A303-305; Klenert: A225-226; Frescia: A193-194; Myers: A201202).

D. Bartow's Claims regarding discussion about the TV Show the Sopranos

In Bartow's initial conversation with defense investigator Majeski, Bartow did not claim that any of the jurors had drawn parallels between the trial and the Sopranos TV show. While Bartow told Majeski the trial reminded him of a Sopranos' episode, Bartow repeatedly denied that there were any preconceived notions expressed by the jurors because of the Sopranos or any parallels drawn between the case and the Sopranos (People's Exhibit 3).<sup>9


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9</sup> When asked by Majeski if a juror had said that the proceedings had resembled a Sopranos' episode, Bartow replied, if any did it was likely Bencovich. However, Bartow conistently told Majeski that no one had drawn a negative comparison between the Sopranos and the trial.

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At the hearing, Bartow claimed that some of the female jurors had drawn parallels between what they were hearing in this case and the Sopranos television show (Bartow: A106-107). According to Bartow, during the recesses surrounding the testimony of Sean Richard, who was a prosecution witness, some jurors commented about how much the trial resembled a Sopranos episode (Bartow: A107). Bartow dismissed the discussions as "just general" (Bartow: A107-108). Finally, Bartow remembered that someone said "Sean Richard was like Tony Soprano" (Bartow: A141).

Juror 9, Terry Steiner, recalled that during the People's case, around the time of Richard's testimony, she thought here were some parallels between Richard and what one might see in the Sopranos television show (Steiner: A251-252). Steiner, however, did not suggest that the jurors had any conversation about this fact (Steiner: A252).

Mayer recalled that, sometime during the trial, another juror said "doesn't this remind you of the Sopranos?" (Mayer: A307). As for parallels drawn between this case and the Sopranos, Mayer himself felt it was confined "more so with the audience than with the people involved" (Mayer: A308).

Min too recalled some parallel between Richard's testimony and the Sopranos (Min: A353), but limited that comparison simply noting that the "mob was involved" (Min: A356), and that someone said Richard reminded them of Tony Soprano (Min: A353). Min added that nothing about the

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comparison led him, or anyone else, to conclude that defendants were "getting paid off" (Min: A356-357).

E. Claims Regarding so-called Anti-Union Bias and Remarks by Juror 8
 

In Bartow's initial conversation with defense investigator Majeski he told Majeski that he thought Bencovich "wasn't terribly union friendly while, you know, during the course of deliberations" (People's Exhibit 3, emphasis added). When Majeski asked if Bencovich was "anti-union," Bartow replied "I wouldn't want to label him as that, but you know he did, definitely have an opinion, you know, he knew, just what racketeering was all about" (People's Exhibit 3).

At the hearing, Bartow was unable to recall whether Bencovich had made any anti-union comments before deliberations. Nor could Bartow recall what Bencovich's definition of the term labor racketeering was. But, in conclusory fashion, with no elaboration, Bartow did claim that Bencovich "painted a rather negative picture of the unions" (Bartow: A83). Bartow had only a general impression of Bencovich's anti-union attitudes (Bartow: A83-84, A88). Bartow further claimed that during the trial, Bencovich made remarks that suggested he was much more familiar with law enforcement and labor unions than he had led everyone to believe during the voir dire (Bartow: A8587). Bartow acknowledged that Bencovich said that he would have an open mind during the trial. However, Bartow claimed that, "[w]hen it came to work

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on this jury he didn't. Everything he said had a negative fragrance" (Bartow: Al27-128)

Bencovich, a former union member himself, (Bencovich: A362), recalled that one juror asked him about "labor racketeering," but he told the juror that he was unable to answer (Bencovich: A377-378). Bencovich never told other jurors that corruption was rampant in unions (Bencovich: A365, A369-370). And he steadfastly maintained that he had not shared his prior labor union experiences with jurors before deliberations (Bencovich: A367-370, A377-378). Furthermore, he provided jurors with no information that was not in the record itself (Bencocvich: A369). Interestingly, not even Bartow testified that Bencovich said that he would find defendants guilty despite what the evidence showed (Bartow: A144).

Allen, in her testimony, agreed that Bencovich had a more negative view of unions, but Allen was clear that he expressed this view only during deliberations (Allen: A319-320, A327-328). Bencovich's opinions, however, had no effect on deliberations (Allen: A328-330, A332).
Jurors Voelkle, Seiffert, Chamblis, Curtis, Klenert, Sirowitz, Mayer and Fried did not recall Bencovich being asked a question about labor racketeering, or explaining what labor racketeering was (Voelke: A155; Seiffert: A159-160; Chamblis: A178-179, A184; Klenert: A193; Fried: A396). Fried did remember hearing the term "labor racketeering" but was unsure of the context (Fried: A

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396-397). None of these jurors recalled Bencovich describing his experiences with union corruption or racketeering, or that corruption was common in unions. While Chamblis recalled Bencovich being asked the definition of labor racketeering he did not recall the answer he gave (Chamblis: A180-181). While Min remembered Bencovich answering another juror's question about what labor racketeering was, but this took place during deliberations, not before (Min: A344). Some jurors like Steiner and Sirowitz felt that Bencovich knew more about unions and "this kind of stuff" based on the fact that he had "previous experience in relation to unions" (Steiner: A247-248; Sirowitz: A286), but that it was not in terms of corruption, it was "just in terms of how things were run" (Sirowitz: A286). While Allen stated that there were discussions about unions in general before deliberations "officially began," she did not attribute these discussions to anyone (Allen: A321).¹⁰

These discussions seemed limited because at least one juror, Min, was unaware of Bencovich's line of work until the day of the hearing – some seven months after the verdict (Min: A343). And, as Klenert testified, any comments by Bencovich about unions were merely all part of "a general discussion" during deliberations(Klenert: A285-286), which as Sirowitz pointed out did

____________________
¹⁰ Allen said the discussion about unions took place before the deliberations "officially began." Which was at a point immediately prior to the jury's efforts to determine defendants' guilt or innocence, but after they had been instructed on the law and sent to deliberate (Chamblis: A186).

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not "[become] part of the deliberation process" (Sirowitz: A287). Furthermore, while Fried testified that Bencovich's explanations may have provided "some comfort when people were confused or didn't understand things" such as terminology, "it had nothing to do with helping [him] decide" (Fried: A424). While Allen stated that Bencovich had generally discussed corruption in unions during deliberations, she testified that, to the best of her ability, her verdict was based solely on the law and the evidence that she heard at trial (Allen: A327328).

Steiner did get the impression that Bencovich was more experienced than the other jurors with regard to union matters (Steiner: A262-264). While Sirowitz "guessed that [Bencovich] "alluded to the fact that there ha[d] been a relationship between unions and corruption over the years," (Sirowitz: A276), this occurred during deliberations (Sirowitz: A278-279). Sirowitz did not recall Bencovich discussing hiding or altering shop steward reports (Sirowitz: A278). Rather, Sirowitz noted, "I think that was an issue that we all took up very seriously with the material [evidence] we had" when the jury was deliberating (Steiner: A278-279).

Neither Alternates Frescia nor Myers recalled Bencovich being asked any questions about "labor racketeering" (Frescia: A193; Myers: A198-199). Furthermore, Myers did not recall any instance of inappropriate behavior on the part of Bencovich (Meyers: A200-201). While some comments may have

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been made that "alluded to the fact that there has been a relationship between unions and corruption over the years," no juror was able to offer specific instances where Bencovich or any other juror had suggested they would base their verdict on their own personal experiences rather than the evidence.

POINT

NO CONDUCT BY A JUROR AFFEC'T'ED THE
FAIRNESS OF THE DEFENDANTS' TRIAL

After trial, the judge set aside the verdict based on allegations of juror misconduct. Those allegations were launched by Alternate Juror 3, Robert Bartow. Bartow had a clear agenda. He personally thought defendants should have been acquitted (Bartow: A436-437). Consequently, after the trial, he worked with the defense team in its effort to upset the verdict. In his decision, the judge acknowledged that Bartow's motives were suspect (Decision: A505). In addition, Bartow's testimony at the post-trial hearing was contradicted again and again by statements he had made to a defense investigator right after the trial. And there was no way for him to minimize those contradictions or explain them away because the defense team had actually tape recorded his initial statements.
Nonetheless, the judge found that there were incidents of juror misconduct. In a nutshell, almost all of those incidents had to do with comments the jurors made to one another during the trial. While many of Bartow's specific

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allegations of misconduct had no support among the other jurors, some of the jurors acknowledged there had been instances in which they commented about the trial. The judge felt that, although some of the jurors had adhered to his admonitions, others had "flagrantly ignored [his] admonitions not to discuss the case" (Decision: A520). And in this regard the court was correct that it would have been preferable if there had been absolutely no talking about the trial.

On the other hand, the critical issue was not whether some jurors had made remarks, but whether the remarks they had made prejudiced defendants and deprived them of a fair trial. Notably, the judge concluded that "There is no way to determine at this juncture exactly who said what . . ." (Decision: A520). Indeed, the evidence at the post-trial hearing made it impossible to piece together "who said what" to whom, much less that anything improper or unfair had been said. The hearing evidence did establish, however, that all of the jurors who were specifically questioned, were unequivocal in their assurances that they had based their verdict on the trial evidence and nothing else. On this record, defendants failed to meet their burden of establishing that the alleged incidents of juror misconduct, either individually or cumulatively, affected the fairness of the trial Accordingly, the lower court's decision should be reversed.

Undeniably, ". .. ours is a human process, and just as there are no "perfect" trials, there are no "perfect" jurors." People v. Arnold, 96 N.Y.2d 358, 363 (2001). Thus, it is well settled that "Not every misstep by a juror rises to

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the inherently prejudicial level at which reversal is required automatically...Each case must be examined on its unique facts to determine the nature of the misconduct and the likelihood that prejudice was engendered." People v. Irizzary, 81 N.Y.2d 557, 561 (1994), quoting People v. Clark, 81 N.Y.2d 913, 914 (1993); People v. Brown, 48 N.Y.2d 388, 394 (1979). And of course, "Absent a showing of prejudice to a substantial right...proof of juror misconduct does not entitle defendant to a new trial." People v. Irizzary 81 N.Y.2d 557, 561 (1994); People v. Ciaccio, 47 N.Y.2d 431 (1979).
In fact, for a trial court to take the drastic measure of setting aside a jury verdict, the defendant bears the heavy burden of proving how the alleged "misconduct was inherently prejudicial to his substantial rights." People v. Clark, 81 NY.2d at 914-915. This means that defendants must establish that the juror's conduct actually "prevented fair and due consideration of the case." People v. Phillips, 87 Misc.2d 613, 625 (Sup. Ct N.Y. Co. 1975), affd 52 A.D.2d 758 (1St Dept. 1976), quoting People v. Catalanotte, 67 Misc.2d 351, 353 (Sup. Ct. Kings Co. 1971).
Jurors are prohibited from discussing the case during the course of the trial to prevent premature deliberations, an early sifting and weighing of facts, and drawing of conclusions regarding guilt or innocence. The process requires jurors to keep an open mind until all the evidence is in and they have been instructed on the law and deliberations begin. However, comments by jurors that do not

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"indicate premature deliberations or sifting of facts, or any predetermined opinions based on outside influence" do not undermine the fairness of a trial and the deliberations. People v. Homey, 112 A.D.2d. 841, 843 (1^St Dept. 1985).

Here, the hearing evidence did not establish that the remarks at issue rose to the level of premature deliberations, or in any way skewed the deliberative process or the fairness of the deliberations.

A. Claims Regarding Discussion of Witness Testimony, Credibility of Witnesses and Comments Regarding Defendants Prior to Deliberations.

The most serious allegation of juror misconduct was levied against Juror Fried. True at one point during the trial, Fried stated that, based on what he had heard up to that point, he thought defendants were guilty (Fried: A414; Decision: A522). To be sure, Fried was wrong even to mention guilt or innocence before the deliberations. But none of the other jurors were affected by his statement. After all Bartow, who did not participate in deliberations or verdict, was the only one who heard the remark. None of the other jurors heard it, and so no one else could have been influenced by it Significantly, too, Fried testified unequivocally that his verdict was based on all of the evidence and the judge's charge at the end of the case and not his earlier thoughts (Fried: A422). Fried's assurance that his verdict was based solely on the evidence and the judge's instructions on the law at the end of the case clearly established that his verdict was proper. See People v. Mason, 299 AD2d 724, 725 (3^rd Dept. 2002) (no error when during

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trial, juror who had realized he had read newspaper account and probably inferred guilt, swore he would base his opinion solely on the evidence at trial). See also People v. Browne 307 A.D.2d 646, 646 (3^rd Dept. 2003)(juror commenting to another juror that it "was going to be an easy case," did not result in prejudice when the comment did not affect deliberations); People v. Gordon, 11 A.D.3d 342 (r^t Dept. 2004) (joke by juror that he would quickly find defendant guilty did not serve to disqualify juror from continued service upon unequivocal assurance of his impartiality).

Similarly, at a break during trial, Juror Fried, commented that he was "unsure" if he could believe any of the witnesses (Mayer A299). Fried's statement can be explained as an innocuous comment reflecting his immediate reaction to the evidence received. See People v. Matiash, 197 AD2d 794, 796 (3^rd Dept. 1993) (juror's comment during trial that they kept changing their mind and reevaluating the testimony with each new piece of evidence essentially innocuous). This "terse aside" had no effect on the other jurors of the fairness of the deliberations. See, People v. Homey, 112 A.D.2d 841, 842 (1^St Dept. 1985); People v. Rhodes, 92 A.D.2d 744 (4^th Dept. 1983).

It is also true that during the trial, Juror Fried jokingly questioned if defendants had been drinking at lunch or were sleeping in court (Mayer: A302303, A310-311). The trial court found these jokes to have amounted to "discuss[ing] defendants in negative and sarcastic terms, reaching conclusions

30

unsupported by any evidence, which he conveyed to other jurors" (Decision: A521). Fried's comments were taken merely as jokes by the other jurors (Mayer: A302-303). Moreover, Fried's remarks amounted to nothing more than his observations of defendants in the court room, which other members of the jury witnessed for themselves. This was no a situation where the jurors had been tainted by an outside influence. While Fried's judgment in making jokes about the appearance of defendants was unfortunate, it cannot be said that his comments affected the ability of the jurors to reach a verdict based solely on the evidence. The remarks were understood as jokes, not comments about defendants' guilt or innocence. And while they were certainly deemed "negative" by several of the jurors who heard them, they did not play a role in the deliberations or affect the verdict because none of the jurors who heard them said they affected them in anyway (Mayer: A302-303).

In a separate incident, Juror Fried thought he recalled that someone, possibly Juror Bencovich, saying something about the fact that Hooters was a good place for "corrupt union officials to hang out" (Fried: A415). It is clear from the record however, that no juror was affected by this comment. While tasteless, the comment did not amount to a sifting of the evidence or a determination of guilt or innocence.¹¹
________________
¹¹ It should be noted that Fried was unsure where he heard the comment. In fact, the alleged remark was very similar to a suggestion made by Deveraux's attorney in his summation,

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In any event, these comments were not discussions of the evidence, or premature deliberations. There was no suggestion that the jurors had engaged in a sifting of the facts. Rather these remarks were "terse" asides relating to the testimony that the jury had just seen or heard in the courtroom, which did not affect their subsequent deliberations in any way. See Homey 112 A.D.2d at 843; See also People v. Santiago, 166 A.D.2d 362 (1^St Dept. 1990) (fairness of trial not compromised by comments that "were 'terse asides' concerning the personalities of the witnesses, parties, lawyers and the court," as long as jurors could judge case on the evidence presented). See also People v. Gordon, 11 A.D.3d 342 (1^St Dept. 2004).

An additional allegation of misconduct was made against Juror Bencovich. Bencovich had union experience and during breaks in the trial, he told other jurors what the terms "shop steward," "business agent" and "labor racketeering" meant (See Mayer: A293-295, A296-297; Bencovich: A365-367; A377). The remarks, however were very limited and served only to define particular terms (Mayer: A293-294). The jurors did not discuss the significance of these terms or how they related to the trial evidence. Moreover, the discussions did not consist of "sifting of facts, or any predetermined opinions based upon outside influences." People v. Homey, 112 A.D.2d at 843; See also
_____________________________________________________
when in an attempt to discredit the People's witnesses, said, "[i]f you're gonna find a place for two guys like Rucereto and Richard to hang out, isn't Hooters the place?" (Defendant Deveraux Summation Excerpt: A525-526).

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People v. Rhodes, 92 A.D.2d at 745 (comments merely expression of juror's immediate reaction to the testimonial description).

B. Claims Regarding Comments about the Prosecutor

Another claim of misconduct involved comments on the performance of the attorneys during the trial. There was no evidence, however that these comments affected the deliberations. Moreover, the remarks were even handed. In fact, "each lawyer was treated fairly in these comments" (Min: A349; Fried: A409). Specifically, Juror Min recalled, at some point during the trial, another juror made the comment that he thought the prosecutor had "pulled a rabbit out of his hat" (Min: A349). And Juror Fried recalled his thoughts at the timer were that "I think at times we were quite proud of what he was doing and how he was coming up with stuff" (Fried: A410). These isolated quips about the prosecutor however, did not suggest however that the jurors had pre-judged the case.

Notably, in People v. Rojas, 220 A.D.2d 266 (1^St Dept. 1995), a juror verbally responded to rhetorical questions presented by the prosecutor in his summation. But even that conduct was not indicative of bias, nor did it taint the other jurors. Similarly, here, while the comments generally suggest some jurors were impressed with the skill of the prosecutor, there is "nothing in the record to demonstrate that the juror's behavior was indicative of bias or affected the other jurors." Rojas at 267. In fact no juror mentioned that these

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comments factored into the deliberations in any way. See also People v. Estrada, 191 A.D.2d 286 (1" Dept. 1993)(greeting a prosecution witness, or informing prosecutor that trial exhibits were misnumbered was innocuous); People v. Santiago, 166 A.D.2d 362 (1^St Dept. 1990) (comments about lawyers which did not affect deliberation not prejudicial).

C. Claims Regarding Articles in the New York Times and Village Voice

As the trial judge correctly pointed out, this case was the subject of some media attention. Indeed, an article entitled "A Mob Soprano Sings" appeared in the Village Voice during the trial. While three jurors recalled someone commenting that there had been an article about the trial in the Village Voice (Sirowitz: A279-280, A212; Allen: A323, A325; Min: A337-338), none of those jurors recalled anyone reading it or any comment about the article other than the fact that it had been written (Sirowitz: A283-284; Min: A339-340; Allen: A323, A325). And although a comment during deliberation caused Allen to suspect that someone might have actually read the article, because they had mentioned the title during deliberations (Allen: A331-332), there was no evidence that any of the jurors discussed the contents of the article during deliberations or that the mere existence of the article prejudiced defendants in any way.

Prior to the trial, another unrelated article about union corruption appeared in the New York Times. Five jurors recalled that, during the trial,

34

another juror had mentioned that they had seen this article, the jurors speculated that the article may have been in the jury room (Bartow: A90-91; Steiner: A256; Min: A353-356; Fried: A399-401; Bencovich: A363-364). No juror, however testified that the article had any affect on their deliberations.

Defendants' claim relied on the possibility, not the actuality, that either one or both of these articles affected the jury. But there is no evidence in the record to demonstrate that this occurred. And the possibility that the jury was tainted by the New York Times article was particular remote. After all

This publicity concerning general claims of [union corruption], without any reference to defendant[s], cannot be deemed prejudicial. It has been held that the potential for prejudice from media publicity is most tenuous when it involves reports of similar crimes committed by other individuals, even members of a group associated with defendant.

People v. Homey 112 A.D.2d 841, 844 (1st Dept. 1985) (internal citations omitted).
Accordingly, there was no showing that extra-record material came before the jury, or that it "impact[ed] on the jury's opinion and ability to render a fair verdict." People v. Smith 187 A.D.2d 365, 369 (1^sr Dept. 1992); See People v. Testa, 61 N.Y.2d 1008, 1009 (1984); See People v. Marquez, 188 A.D.2d 619 (2^nd Dept. 1998).

D. Bartow's Claims Regarding Discussion about the TV Show the Sopranos

While several jurors apparently compared the proceeding to a Sopranos episode, this was because they thought there were similarities between

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prosecution witness, Sean Richard, and fictional mafia boss Tony Soprano (Bartow: A141). Juror 7, Kimberly Allen, for example, said she felt uncomfortable because there were union people in the audience and acknowledged that some of the jurors had discussed this (Men: A321-322). She did not, however, testify that the audience members reminded her of characters on the Sopranos. And she never suggested that she thought the audience members were mobsters or criminals (Allen: A323). At the same time, while Mayer did say that he thought the people in the audience looked like characters you might see on the Sopranos and that they made him uncomfortable, he did not assume these individuals were union members and did not conclude that they were connected to defendants. In fact, he said "he did not know what side they were on" (Mayer: A308).

Moreover, Allen's comments to other jurors during the trial that there were union members in the audience and the hallways did not mean that she was discussing the case. She certainly was not sifting and weighing evidence. She did not violate the admonitions of the court, and nothing about these remarks affected the jury's deliberation. See People v. Leonard, 252 A.D.2d 740, 741 (3^rd Dept. 1998) (generalized statement by juror asking why the defendant should be allowed to hear witnesses names not prejudicial; it had no effect on deliberations).

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If anything, comparing the prosecution witness Sean Richard to Tony Soprano, a fictional character who was an organized crime family boss, meant that the juror viewed Richard in a negative light. It is difficult to imagine how defendants were prejudiced by this. Thus, on this record, defendants' rights cannot be said to have been substantially affected. See, People v. Clark, 81 N.Y.2d 913, 914 (1993); See also, People v. Loliscio, 187 A.D.2d 172, 179 (2nd Dept. 1993)("In this context, any extrajudicial information about the victim's character would tend to support the defendant and cannot be considered prejudicial to him"); People v. Bautista, A.D3rd (Slip Op. 76, 1^St Dept. decided January 5, 2006).

E. Claims Regarding so-called Anti-Union Bias and Remarks by Juror 8

Several of the jurors testified that they recalled Bencovich stating that corruption was common in unions (Sirowitz: A276; Allen: A319-320; A327328; Fried: A403-404). But none of the jurors testified that Bencovich had said that defendants were guilty because of this or that the jury's verdict was based on anything other than the evidence. Indeed, none of the jurors specifically recalled any particular anti-union bias by Bencovich, other than that he believed corruption was common in unions. Juror Fried did say that his own preconceptions regarding union corruption in general had been somehow solidified by Bencovich's comments (Fried: A403-404). But Fried confirmed that his verdict was based on the evidence and the law (Fried: A422).

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Notwithstanding this testimony to the contrary, defendants claimed that Fried and Bencovich hid their anti-union bias during jury selection and that Bencovichs' statements during the trial served to reinforce Fried's preconceived notions about union corruption.

While the court was concerned that Fried and Bencovich had preconceived bias against defendants that they hid (Decision: A522), neither held such beliefs. During voir dire, Fried stated expressly "I guess through history and hearing stories, there's certainly some suspicion in my mind." Fried was clear, however, that his notions about unions and organized crime would not prevent him from keeping an open mind. He assured the court "I think I can judge [defendants] and separate all that from how I apply my--" (Voir Dire Excerpt: A527-528). During jury selection, when asked if he had preconceived notions about unions, Bencovich stated that he had "been a union member in college . . . there is no reason to presume. They come in with a clean slate" (Voir Dire Excerpt: A529-530).

Bencovich's subsequent comments during the deliberations regarding union corruption did not reveal a hidden anti-union bias. That someone could believe that corruption is common in a union does not mean that he harbors either an anti-union bias, or a predisposition that defendants, who were union officials, were guilty of the crimes charged. Indeed, Bencovich had been a union member in college (Bencovich: A362) and his first job as an accountant was for a

38

union benefit fund (Bencovich: A366). Other than Bartow's detection of a "negative fragrance" to Bencovich's comments, no one testified that Bencovich said anything other than there had been corruption historically in unions.

Bencovich's comments about shop steward reports or the roles of a shop steward or business agent were unexceptional. There was extensive trial testimony about these positions and there was no dispute at trial about the purpose of the reports or the roles of a shop steward or a business agent. Indeed, the material issue at trial was whether a bribe offer had been made and accepted, not whether one could make more money using non-union workers.¹²

It was also not disputed that union contractors could make more money using non-union workers, and there was considerable testimony to that effect. Moreover, based on Bencovich's hearing testimony that he had discussed his experiences with union audits (Bencovich: A365-368), there is no reason to believe that the statements recalled by Fried related to anything other than audits of union contractors, a non-material issue at trial. Fried did not testify,
_________________________
¹² The use of shop steward reports in this regard was not an issue at trial and was not contested in any way (See Trial Transcript Excerpts: A531-542).

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nor was he asked, to distinguish if these comments had to do with the receipt of bribes, or general corruption.¹³

Bencovich did no more than define the term "labor racketeering." Interestingly, defendants were the ones who interjected the concept of labor racketeering into the proceedings when they mentioned it during their opening and closing statements, and cross-examination of Sean Richard. Indeed, defense counsels were arguing that, in an effort, to curry favor with prosecutors, Richard had made out a case that amounted to "labor racketeering" (See Deveraux Opening: A543-544, A545; Forde Opening: A547; Cross-examination of Sean Richard: A548-549; Forde Summation: A550). Nothing about Bencovich's remarks prejudiced the defendant. See, People v. Homey, 112 A.D.2d 841, 843; People v. Rhodes, 92 A.D.2d 744, 745.

In addition, during deliberations Bencovich described the purpose of shop steward reports, and explained generic terms relating to union benefits, and mentioned that union corruption was common, none of the jurors testified that they found Bencovich's explanations helpful in reaching a verdict, and none of the jurors queried stated that their verdict was based on anything other than the evidence. Moreover, none of the jurors recalled Bencovich drawing any parallels between union corruption and defendants.
___________________
¹³ Indeed, the most Fried would say about whether these statements related to the witnesses testimony, was that it "possibly" did (Fried: A396).

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While a "reversible error can materialize from (1) jurors conducting personal specialized assessments not within the ken of juror experience and knowledge (2) concerning a material issue in the case and (3) communicating the expert opinion to the rest of the jury panel with the force of private, untested truth as it were evidence," People v. Maragh, 94 N.Y.2d 569, 574 (2000), the information that Bencovich's imparted to the other jurors was not related to a material issue and not a "specialized assessment." See People v. Arnold, 96 N.Y.2d 358, 367 ("there is no reversible error unless a juror has specialized knowledge concerning a material issue in the case").

Reversal was warranted in People v. Maragh, 94 N.Y.2d 569, 574 (2000), for example, where the special knowledge imparted by a juror during deliberations consisted of two jurors who were nurses using their professional expertise to calculate the victims blood loss and reach conclusions about the cause of death—a material issue at trial—findings that contravened the expert testimony and theories of both sides presented at trial. Here, Bencovich's comments regarding shop steward reports and the functions of shop stewards and business agents were not material issues at trial, and indeed were not in dispute. The material issue was whether defendants had agreed to accept a bribe for violating their duties as union officials, not what a shop steward does, or what a shop steward report contains.

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This is not a case where the jury has been improperly influenced by matters going beyond the scope of the trial evidence, or where the jurors themselves become unsworn witnesses against the accused. Bencovich's comments are closer to those of a juror in People v. Santi, 3 N.Y.3d 234 (2004), an unauthorized practice of medicine prosecution. In People v. Santi, 3 N.Y.3d 234, the Court found "[t]he juror, while perhaps, assertive, was not an "expert." Her experience in the medical field was limited. Moreover, she did not conduct any experiment or investigation that was later used to influence the jury. Instead, the record makes clear that she merely gave her lay opinion regarding the introduction of an I.V. line, drawing on both her life experiences and the trial evidence." People v. Santi 3 N.Y.3d at 250.

The record here does not establish that Bencovich imparted special knowledge that influenced other jurors about material issues in the trial and served to convince other jurors to convict defendants, and thus frustrate defendants right to a fair and impartial consideration of facts by the jury. People v. Homey, 112 A.D.2d 841 (1^St Dept. 1985); See, People v. Morales, 121 A.D.2d 240 (1^st Dept. 1986). Here, there was no evidence that Bencovich's comments or any information he provided played any part in the jury deliberations or influenced the opinions of his fellow jurors. People v. Loliscio, at 179; People v. Robinson, 1 A.D.3d 985, 986 (4^th Dept. 2003)

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Here, none of the claimed acts of misconduct were prejudicial "as they did not indicate premature deliberations or sifting of facts, or any predetermined opinions based on outside influence." People v. Homey, 112 A.D.2d 841, 843 (1St Dept. 1985). Nor did the claimed misconduct "impaire[d] the ability of the jury to fairly and impartially assess the case" Horney at 845.

Even taken cumulatively, these nine supposed errors neither affected defendants' right to a fair trial nor improperly affected the jury's deliberations or verdict. The decision should therefore be reversed and the verdict reinstated.

CONCLUSION

The order of the court below setting aside the jury's verdict should be reversed, the verdict should be reinstated, and the case should be remanded to the Supreme Court, New York County, for sentence.

Respectfully submitted,

ROBERT M. MORGENTHAU District Attorney New York County

Gina Mignola
Michael A. Scotto

Assistant District Attorneys Of Counsel

February 8, 2006

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