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Frank Policelli, for Appellant.
Timothy P. Fitzgerald, for Respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed.
Defendant was charged with criminal possession of a forged instrument and with the theft of $3,500 from the Toccolana Club, a private social club in Rome, New York. After his conviction for grand larceny in the fourth degree (Penal Law § 155.30), defendant moved pursuant to CPL 330.30 to set aside the verdict on the ground of juror misconduct involving a single seated juror. During voir dire, the juror, a resident of Rome, was asked whether he was "familiar with members of the Toccolano Club." The juror responded: "I just know where it is, not really, no." It was subsequently established that the juror had decades earlier himself been a nominal member of the club, and two of his relatives were or had been members.
After a hearing on defendant's motion, the trial court found there was no improper conduct on the part of the juror, and further that the juror's conduct had not "affected a substantial right of defendant" (CPL 330.30[2]). The Appellate Division affirmed. The trial court's undisturbed factual finding has support in the record and, like the alleged excessiveness of defendant's sentence, is beyond the scope of our review.
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Order affirmed, in a memorandum. Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.