People v. Samandarov

*436OPINION OF THE COURT

We hold that Supreme Court acted within its discretion in denying without a hearing defendant’s post-trial motions alleging juror misconduct and a Rosario violation.

I

Defendant was convicted of attempted murder, second degree assault and weapons offenses based on the shooting of Alik Pinhasov. The key witnesses at trial were Pinhasov and Jose Ramirez. Pinhasov testified that defendant shot him. Ramirez, who lived across the street from the place where the shooting occurred, testified that he heard gunshots, looked out his window and saw a man on the ground and another man—who, from Ramirez’s description, was apparently defendant—holding a gun. The People also proved that the gun used to shoot Pinhasov was recovered from defendant’s pocket minutes after the shooting.

Several weeks after the verdict, defendant moved to set it aside pursuant to CPL 330.30 (2), on the ground of “improper conduct on the part of a member of the jury.” Supreme Court denied the motion without a hearing, and pronounced sentence. Eighteen months later, defendant moved pursuant to CPL 440.10 to vacate his conviction on the ground that the People had violated their duty under People v Rosario (9 NY2d 286 [1961]) by failing to turn over to defendant statements made by Ramirez to the police before trial. Supreme Court denied this motion too without a hearing. The Appellate Division affirmed defendant’s conviction and sentence, and the denial of his CPL article 440 motion (People v Samandarov, 56 AD3d 575 [2008]). A Judge of this Court granted leave to appeal (12 NY3d 762 [2009]).

We review the decisions to deny hearings on both the CPL article 330 and the CPL article 440 motions for abuse of discretion (People v Friedgood, 58 NY2d 467, 470 [1983]). We conclude that discretion was not abused, and we affirm.

II

The basis for defendant’s CPL article 330 motion was an affirmation of his counsel, which in turn relied on a newspaper article and on information given to counsel by an unnamed “neighbor” said to be a “co-worker” of the foreperson of the jury.

*437The newspaper article mentioned in the CPL article 330 motion appeared in the New York Daily News a few days after the verdict. It suggested that there was a connection between the shooting of Pinhasov and the later murder of Pinhasov’s cousin, Eduard Nektalov, who was, according to the newspaper article, “executed in broad daylight” eight months before defendant’s trial. Defendant’s appellate brief also relies on another newspaper article, not cited in his CPL article 330 motion, that appeared in the New York Times during the trial; that article said the Pinhasov shooting “has links” to the Nektalov murder. The Times article was not mentioned on the record at trial, but the judge may have had some warning of it: on the day before the article appeared, he said to the jurors, “I want to once again emphasize in the strongest possible terms that you are not to read about the case in tomorrow’s newspapers.” There is no evidence that any juror disobeyed that instruction. Nektalov’s name came up only once at the trial, when a police officer testified that Nektalov served as a translator at the officer’s interview with Pinhasov.

The Daily News article that appeared after the verdict reported that, though the Nektalov murder had not been mentioned at trial, “jurors said they were aware there may have been a link and that those involved . . . may have ties to mob activities.” It quoted a juror as saying “Of course we were aware of it. . . and worried about it. . . . I was looking out [in the audience] thinking ‘Gee, they can see all of our faces.’ ” According to counsel’s affirmation in support of the CPL article 330 motion, counsel “confirmed” with the Daily News reporter that the article was accurate and that the juror quoted was the foreperson. Counsel also said his neighbor had told him that the jury foreperson “had discussed her jury experience with her fellow employees and again acknowledged that the jury talked about defendant’s involvement with the Russian Mob throughout the trial and that the jury was preoccupied with this issue during the course of the trial.” No affidavit was submitted from either the neighbor or the jury foreperson.

Even putting aside the hearsay nature of this evidence, Supreme Court was justified in ruling that defendant did not submit enough proof of juror misconduct to warrant a hearing. Defendant submitted nothing to show that jurors had received from outside the courtroom any information about the Nektalov murder or any other alleged “Russian Mob” activities. The evidence showed at best that jurors had speculated among *438themselves that the case had “Russian Mob” connections—and the nature of the case almost invited that sort of speculation. Indeed, the danger was so obvious that defendant chose to bring it up in voir dire, mentioning a possible “perception” that “if you are a member of this group you must be involved in some sort of illegal activity” and asking if anyone had “problems or preconceived stereotypes in their minds concerning Russian-Americans.” Defense counsel returned to the theme during trial, asking Pinhasov if he had any history of “loan sharking” or “money laundering.” Thus, if the jurors in this case did converse among themselves about the “Russian Mob,” there is no reason to think that anything outside the courtroom prompted that conversation. Absent some “outside influence” on the jurors, this record provides no ground for impeaching their verdict (see Alford v Sventek, 53 NY2d 743, 744 [1981]).

Ill

Ramirez, whose testimony placed a gun in defendant’s hand immediately after the shooting, was asked on cross-examination if anyone had interviewed him before trial. He replied: “Just the officers that came up that night [i.e. the night of the shooting] and the district attorney that came to see me.” Notes of the police interview on the night of the crime were turned over to the defense as Rosario material. In support of his CPL article 440 motion, defendant tried to show that police officers had also taken part in one or two later interviews, and that a police officer had taken notes at those interviews that had not been turned over.

In support of his motion, defendant submitted an affidavit from Ramirez. The affidavit was typed, but contained handwritten insertions made by an investigator employed by defense counsel. The affidavit as typed says that “uniformed New York City Police Officers and two Detectives came to my apartment on two separate times and dates to conduct interviews.” The handwritten insertions add the information that the police officers came “along with the District Attorney, Queens County” and say, at one point, that they came “a third time” (thus creating an apparent inconsistency in the affidavit). Typed language not changed in handwriting says that, on each of two occasions, a “Detective made hand written entries into a spiral note pad.”

In opposition to defendant’s motion, the People submitted a second affidavit from Ramirez, retracting some of the statements made in the first one. The second Ramirez affidavit says *439that an interview by police officers, in which an officer wrote on a pad, occurred only on the night of the shooting. There were, according to the second Ramirez affidavit, two later visits from the Assistant District Attorney (ADA) responsible for the case, and on at least one of those occasions the ADA was accompanied “by two blond ladies from the District Attorney’s Office.” At those later meetings, according to Ramirez’s second affidavit, no police officers were present and no one took notes. In explanation of his previous affidavit, Ramirez testified that defense counsel’s investigator had brought him the typed version of the affidavit; that Ramirez told him it was “not correct” and that its deficiencies included “the fact that he did not mention the Assistant District Attorney’s visits”; that the investigator then “wrote something on the papers about the District Attorney and . . . pressured me to sign them .... I signed the papers so that he would leave me alone.”

Along with Ramirez’s second affidavit, the People submitted several others, among them one from the ADA and one each from the “two blond ladies”—a detective investigator and a paralegal, both employed by the District Attorney’s office. These three witnesses confirmed Ramirez’s second account: they testified that all three of them had attended one interview with Ramirez, and that the ADA and the detective investigator had attended another. The People submitted copies of datebook entries and time sheets confirming the ADA’s and the detective investigator’s attendance at the interviews. The ADA, the detective investigator and the paralegal all said that no police officer was present with them at the interviews and that no one took notes. The detective investigator and the paralegal testified that they had nothing with them to write on when they attended the meetings, and the ADA said she did not possess, and never used, a spiral pad. The ADA’s affidavit also explained that no police detective would have been assigned to investigate this case after the date of the incident, because, from a police department point of view, the case had been closed by arrest on the same day. To confirm this, the ADA attached a police department form, dated the date of the crime, bearing the notation: “CASE CLOSED.”

Defendant argues that the material submitted on the CPL article 440 motion, taken as a whole, was enough to require an evidentiary hearing on the question of whether Rosario material—specifically, police notes of interviews with Ramirez—existed that was not turned over to the defense. We assume that *440defendant would be correct if the first Ramirez affidavit had stood uncontradicted, or if only the two contradictory Ramirez affidavits were in the record. But that is not the case. The People submitted detailed proof that Ramirez was simply mistaken the first time, and the Supreme Court reasonably found that proof strong enough to make a hearing unnecessary.

Indeed, it is hard to see how Ramirez could have been correct when he said, in his first affidavit, that police officers visited him on one or two occasions in addition to their visit on the day of the crime; a contemporaneous record shows that the police closed the case that day. And the courts below reasonably discounted Ramirez’s original recollection that a “Detective” took notes on a “spiral note pad” at each interview, for that was contradicted not only by Ramirez’s second affidavit but by the detailed accounts of the meetings by the ADA and her two colleagues, all of whom swore that no police officer was present, and that they had no spiral pads and took no notes. The likelihood is overwhelming that Ramirez, in his first affidavit, simply erred in thinking that the police detective and the spiral pad that he saw on the day of the crime were also present at the later interviews.

It is, no doubt, theoretically possible that a hearing could show otherwise—could show the existence of suppressed Rosario material, in the form of handwritten notes that everyone present at the interviews says never existed. Supreme Court, however, did not abuse its discretion in finding this possibility too slim to justify the burden and expense of a hearing.

IV

Accordingly, the order of the Appellate Division should be affirmed.