In People v Scerbo (2009 NY Slip Op 00913 [4th Dept 2/6/09]), the Court held that where two jurors improperly communicated their expert opinion to the other jurors who relied on such information in voting to convict, the trial court was correct in vacating the conviction. The trial court
properly instructed the jurors that they should use their common sense, knowledge, and experience in evaluating the evidence but that, if a juror possessed special expertise related to a material issue in the case, the juror could not rely on that special expertise “to inject into your deliberations either a fact that is not in evidence or inferable from the evidence, or an opinion that could not be drawn from the evidence by a person without that special expertise.” Despite that instruction, the evidence at the post-trial hearing on defendant’s CPL 330.30 motion established that two jurors, both of whom were educators, informed the other jurors that teachers are trained or informed never to touch students. That information is not within the common understanding of the average juror, and the issue whether it was appropriate for defendant to allow his female students to sit on his lap during class was a material issue in the case. Indeed, the record establishes that at least one juror was swayed by the opinions of the two jurors in voting to convict defendant. As the court concluded in granting defendant’s motion, once a juror was ‘convinced that defendant knowingly violated some professional ethic by allowing students to sit on his lap, [the juror] was then able to make the next logical step of concluding that he did so only for the purpose of committing the crimes under consideration.’
