People v. Lakomec

— Appeal from a judgment of the County Court of Broome County (Smyk, J.), rendered December 4,1979, upon a verdict convicting defendant of the crimes of conspiracy in the second degree, criminal solicitation in the second degree and criminal possession of a weapon in the second degree. When this case was initially before this court, we rejected defendant’s challenge to the sufficiency of the indictment and to certain hearsay statements which were introduced into evidence against him (86 AD2d 77). We withheld decision in the case, however, and remitted the matter to the trial court for a hearing before a different Judge, due to our finding that defendant’s due process rights were violated by the manner in which his postverdict CPL 330.30 motion to set aside the verdict was handled (id. at pp 81-82). De novo hearings were conducted on defendant’s motion before Judge Coutant to determine whether juror Charles Fedora either engaged in or was the victim of improper conduct “which may have affected a substantial right of the defendant” (CPL 330.30, subd 2). In a well-reasoned decision which reviewed the testimony given at the hearings in detail, Judge Coutant concluded that defendant had failed to meet his burden of proving juror misconduct by a preponderance of the evidence (see CPL 330.40, subd 2, par [g]), noting that “[tjhere was undoubtedly some comment made in the presence of Fedora and by him concerning the trial, though the evidence presented at the hearing does not show it to have reached proportions where a substantial right of the defendant may have been affected”. We agree and see no basis for disturbing this decision on what was essentially a question of fact based upon the credibility of the witnesses who testified. Nor are we persuaded by defendant’s arguments that the previous conclusions we reached on the remaining issues in this case should be changed. Accordingly, the judgment of conviction is affirmed. Judgment affirmed. Mahoney, P. J., Sweeney, Kane, Mikoll and Levine, JJ., concur.