SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

735 

KA 15-00027 

PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, TROUTMAN, AND SCUDDER, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

MATTHEW KUZDZAL, DEFENDANT-APPELLANT.

 

ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),

FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (MATTHEW

B. POWERS OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Erie County

(Christopher J. Burns, J.), rendered October 28, 2014. The judgment

convicted defendant, upon a jury verdict, of murder in the second

degree and predatory sexual assault against a child. 

It is hereby ORDERED that the judgment so appealed from is

reversed on the law and a new trial is granted. 

Memorandum: Defendant appeals from a judgment convicting him

upon a jury verdict of murder in the second degree for the depraved

indifference killing of a person less than 11 years old (Penal Law 

§ 125.25 [4]), and predatory sexual assault against a child 

(§ 130.96). On September 15, 2013, at around 7:30 p.m., defendant

called 911 to report as unconscious his girlfriend’s five-year-old

son, with whom defendant had been home alone for approximately six

hours. First responders found the child lying motionless on the

living room floor. He arrived at the hospital with numerous injuries

including a severely fractured skull, swelling and graying of the

brain, a core body temperature of 89 degrees, and lacerations and

abrasions to his anal and rectal areas. The child died from his

injuries two days later. When the police confronted defendant with

the evidence of the child’s anal and rectal injuries, he became “very

agitated” and said that he would tell the truth if the police “didn’t

charge him with rape.” At trial, the child’s physicians testified

that his head injury was of a kind usually associated with “high

speed, high velocity” incidents such as a car crash or an “assault

with a baseball bat,” and his anal and rectal injuries were consistent

with traumatic penetration and “required some force” to inflict. The

physicians further testified that the child’s body temperature

indicated that he suffered his head injury two to three hours before

he arrived at the hospital, and that the graying of his brain matter

indicated a prolonged period of lack of oxygen. That timing estimate
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was consistent with evidence of defendant’s cell phone records, which

showed an unusual lapse in text messaging from his phone between 4:18

p.m. and 4:52 p.m. Furthermore, a forensic biologist testified that

genetic material found on the inside rear portion of the child’s

underwear matched defendant’s DNA profile, and that the probability of

finding a match from individuals in the United States is 1 in 7.758

billion. Although the test on the genetic material to determine the

presence of semen was inconclusive, the biologist testified that the

material “did not have the visual appearance of a blood stain.”

In light of the child’s utter dependence on defendant as his

caregiver, and the evidence of defendant’s physical assault on the

child and failure to seek immediate medical help, we reject

defendant’s contention that his conviction of depraved indifference

murder of a person less than 11 years old is not based on legally

sufficient evidence of “ ‘utter disregard for the value of human

life’ ” (People v Barboni, 21 NY3d 393, 400; see generally People v

Bleakley, 69 NY2d 490, 495). We reject defendant’s further contention

that his conviction of predatory sexual assault against a child is not

based on legally sufficient evidence of anal sexual conduct. Contrary

to defendant’s contention, “penetration may be proven by

circumstantial evidence” (People v McDade, 64 AD3d 884, 886, affd 14

NY3d 760). In addition, viewing the evidence in light of the elements

of the crimes as charged to the jury (see People v Danielson, 9 NY3d

342, 349), we conclude that the verdict is not against the weight of

the evidence (see generally Bleakley, 69 NY2d at 495).

We nonetheless agree with defendant that Supreme Court erred in

failing to make a proper inquiry of two jurors who allegedly were

overheard making disparaging comments about defendant during a recess. 

“If at any time after the trial jury has been sworn and before the

rendition of its verdict, . . . the court finds, from facts unknown at

the time of the selection of the jury, that a juror is grossly

unqualified to serve in the case . . . the court must discharge such

juror” (CPL 270.35 [1]). The standard for discharging a sworn juror

is satisfied “ ‘when it becomes obvious that a particular juror

possesses a state of mind which would prevent the rendering of an

impartial verdict’ ” (People v Buford, 69 NY2d 290, 298; see People v

Dennis, 91 AD3d 1277, 1279, lv denied 19 NY3d 995). There is a wellestablished framework by which the court must evaluate a sworn juror

who, for one reason or another, may possess such a state of mind (see

People v Mejias, 21 NY3d 73, 79, rearg denied 21 NY3d 1058; see

generally Buford, 69 NY2d at 298-299).

To make a proper determination, the court “must question each

allegedly unqualified juror individually in camera in the presence of

the attorneys and defendant” (Buford, 69 NY2d at 299). “In a probing

and tactful inquiry, the court should evaluate the nature of what the

juror has seen, heard, or has acquired knowledge of, and assess its

importance and its bearing on the case” (id.). During the inquiry,

“the court should carefully consider the juror’s answers and demeanor

to ascertain whether [his or] her state of mind will affect [his or]

her deliberations” (id.). That accomplished, the court must place the

reasons for its ruling on the record (see id.).
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It has been emphasized repeatedly that “ ‘each case must be

evaluated on its unique facts’ ” (Mejias, 21 NY3d at 79, quoting

Buford, 69 NY2d at 299). To that end, the court must hold a Buford

inquiry whenever there are facts indicating the possibility of juror

bias, and must not base its ruling on speculation (see People v Henry,

119 AD3d 607, 608, lv denied 24 NY3d 961; People v Dotson, 248 AD2d

1004, 1004, lv denied 92 NY2d 851). Not only does the court’s failure

to hold an inquiry under such circumstances constitute reversible

error, but its failure to place the reasons for its ruling on the

record also constitutes reversible error (see People v Porter, 77 AD3d

771, 773, lv denied 16 NY3d 799). Such errors are not subject to

harmless error analysis (see Mejias, 21 NY3d at 83).

In the instant matter, before the jury began deliberating, one of

defendant’s friends, who had been observing the proceedings, reported

that she had overheard two jurors using a derogatory term to refer to

defendant. The court called the observer to the witness stand, where

she identified two jurors whom she observed “outside smoking a

cigarette talking about [defendant being] a scumbag . . . [and] in the

back row laughing and making faces.” Based on those observations,

defense counsel asked the court to perform an inquiry of the two

jurors. The prosecutor opposed an inquiry, and instead asked the

court to “make a ruling as to whether [it found] this description

credible first.” The court denied defendant’s request and stated: “I

don’t – – I don’t believe that an inquiry of the juror is necessary or

appropriate here . . . [b]ased on what I heard.” The court failed to

conduct an inquiry of the jurors.

We respectfully disagree with our dissenting colleagues that the

court lacked sufficient credible information indicating the

possibility of juror bias. The court’s ruling that an inquiry was not

“necessary or appropriate” was conclusory and, contrary to the

People’s contention, did not constitute an implied determination that

the observer’s testimony was incredible. Unlike in People v Matiash

(197 AD2d 794, lv denied 82 NY2d 899), where the trial court made a

thorough record explaining why the alleged juror misconduct was

innocuous and thus did not warrant further inquiry (id. at 795), here

the court did not explain on the record its reasons for denying

defendant’s request. Based on the record before us, we are compelled

to conclude that the jurors’ alleged reference to defendant as a

“scumbag” indicated the possibility of juror bias, and thus that the

court should have granted defendant’s request to make an inquiry of

the jurors. “[I]t might have been that removal of the juror[s] would

have been unnecessary if a specific inquiry had been made by the court

or counsel, but in the absence of such an inquiry, we cannot be

certain that the defendant was fairly convicted” (People v Ventura,

113 AD3d 443, 446, lv denied 22 NY3d 1203). We therefore reverse the

judgment and order a new trial.

Because a new trial must be held, we address in the interest of

judicial economy defendant’s contention that the court erred in

refusing to charge him with manslaughter in the second degree as a

lesser included offense. We reject that contention. Manslaughter in

the second degree is not a lesser included offense of depraved
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KA 15-00027 

indifference murder of a person less than 11 years old (see People v

Santiago, 101 AD3d 1715, 1716, lv denied 21 NY3d 946; see generally

People v Leak, 129 AD3d 745, 746, lv denied 26 NY3d 969).

Finally, in light of our determination, defendant’s challenge to

the severity of the sentence is moot. 

All concur except SMITH, J.P., and PERADOTTO, J., who dissent and

vote to affirm in accordance with the following memorandum: We

respectfully dissent and would affirm the judgment because we disagree

with the majority that Supreme Court was required to conduct a further

inquiry pursuant to People v Buford (69 NY2d 290). It is well settled

that, “ ‘[i]f at any time after the trial jury has been sworn and

before the rendition of its verdict . . . the court finds, from facts

unknown at the time of the selection of the jury, that a juror is

grossly unqualified to serve in the case . . . the court must

discharge such juror’ ” (Buford, 69 NY2d at 298, quoting CPL 270.35

[1]; see People v Mejias, 21 NY3d 73, 79, rearg denied 21 NY3d 1058). 

The Court of Appeals has stated that its “intention in Buford was to

create a framework by which trial courts could evaluate sworn jurors

who, for some reason during the trial, may possess[ ] a state of mind

which would prevent the rendering of an impartial verdict” (Mejias, 21

NY3d at 79 [internal quotation marks omitted]). 

We agree with the majority that, “[w]hen a sworn juror’s comments

or actions raise[] a question concerning his or her ability to be

impartial, ‘the trial court must question each allegedly unqualified

juror individually in camera in the presence of the attorneys and

defendant . . . In a probing and tactful inquiry, the court should

evaluate the nature of what the juror has seen, heard, or has acquired

knowledge of, and assess its importance and its bearing on the case’ ”

(People v Ruggiero, 279 AD2d 538, 538, lv denied 96 NY2d 834, quoting

Buford, 69 NY2d at 299). We conclude, however, that the issue

presented on this appeal is not whether the court conducted a

sufficient Buford inquiry of the jurors at issue, but rather whether

there was sufficient credible information indicating that any juror

made a comment or engaged in an action that “raises a question

concerning his or her ability to be impartial” as required to trigger

a Buford inquiry of the juror (id.). 

“The right to a trial by jury in criminal cases is ‘fundamental

to the American scheme of justice’ and essential to a fair trial . . .

At the heart of this right is the need to ensure that jury

deliberations are conducted in secret, and not influenced or intruded

upon by outside factors” (People v Rivera, 15 NY3d 207, 211, quoting

Duncan v Louisiana, 391 US 145, 148-149). Thus, a court may not

simply intrude on the jury and begin questioning a member or members

thereof unless there is some credible information indicating that a

juror may have made a comment or taken an action that raises a

question regarding that juror’s ability to be impartial. Here, we

agree with the court that no such credible information was presented

and that no personal inquiry of the jurors at issue was necessary or

proper. 
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It is well settled that “a determination of whether an inquiry by

the court is warranted should be based on the unique facts of each

case” (People v Paulino, 131 AD3d 65, 72, lv denied 26 NY3d 1042,

reconsideration denied 27 NY3d 1004). As the majority notes, this

issue arose when a spectator apparently told defense counsel that a

juror made an inappropriate statement to another juror while court was

not in session. Defense counsel asked to approach the bench after

summations, and then the court directed the spectator to take the

witness stand and be sworn. The spectator testified that she observed

two jurors talking to each other while smoking outside the courthouse,

and that one of them stated that defendant was a “scumbag.” The

spectator also testified that she noticed that those same jurors “were

in the back row laughing and making faces” during the trial

proceedings. The spectator initially stated that she merely walked

past the jurors when she overheard that remark because she did not

want to get involved, and that it had happened the day before she

testified, after court. Upon further questioning by the court and

counsel, however, the spectator repeatedly stated that the incident

occurred while the court was taking a break. The record establishes,

however, that the court did not take a break on the day the spectator

said she overheard the conversation. Rather the court conducted

proceedings without a break in the morning, and then the jury was sent

home for the day at about lunchtime. The spectator also stated that

she overheard the conversation at issue immediately after she was

ejected from the courthouse, and she was not permitted to reenter the

courthouse to inform defense counsel. Conversely, she also stated

that she was ejected because she was telling her friend about this

incident and saying that it was not right. In addition, she testified

that she overheard the conversation when she “stopped and listened for

a minute,” but seconds earlier she had testified that she and the

friend “were going to stop and smoke a cigarette but [they] kept going

because [they] didn’t want to be involved.” Finally, the prosecutor

in questioning the spectator stated, without objection, that defense

counsel had said that the spectator was defendant’s girlfriend, but

the spectator testified that she was merely a family friend, despite

also admitting that she had visited defendant in jail.

At the conclusion of the spectator’s testimony, defense counsel

asked the court to conduct an inquiry of the jurors, and the

prosecutor contended that no further inquiry was warranted based on

the spectator’s information. The prosecutor further stated that he

thought “the Court should make a ruling as to whether [it] find[s]

this description credible first.” The court replied: “I don’t – – I

don’t believe that an inquiry of the juror is necessary or appropriate

here . . . [b]ased on what I heard.” 

In this case, the “[c]ourt chose to begin its in camera

interrogation not with the jurors themselves, but rather with the

witness[, i.e., the spectator,] in an effort to first ascertain

exactly what that witness had seen and heard. This being the least

disruptive method of initially ascertaining the particulars, we see no

error in this mode of proceeding” (People v Matiash, 197 AD2d 794,

796, lv denied 89 NY2d 899). We further conclude that the court, by

stating that it was basing its ruling on what it had heard, determined
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that the spectator’s testimony was not sufficiently credible to

warrant disrupting the normal trial procedure or further inquiring

into the actions of the two jurors in question.

The record fully supports that determination. The spectator’s

testimony was riddled with inconsistencies, and it did not comport

with the chronology of the proceedings in court as they are reflected

in the record. Additionally, the prosecutor noted without objection

that the spectator had previously informed defense counsel that she

was defendant’s girlfriend, yet she denied such a relationship while

testifying. Finally, the spectator testified about actions that the

subject jurors allegedly took during the proceedings, and thus the

court had the ability to assess the credibility of the spectator by

comparing her account to events that the court itself had observed. 

It is clear that the court was closely observing the jury throughout

the proceedings, as demonstrated by the fact that the court previously

noted that a juror had fallen asleep, and that another juror was tired

but paying attention. Consequently, the court, having a full

opportunity to observe the spectator while she was testifying and

judge her demeanor, and having the ability to assess her credibility

against known facts, properly concluded that her testimony was not

credible. It is well settled that a hearing court’s credibility

determinations are entitled to deference due to its ability to

carefully evaluate the answers and demeanor of witnesses (see

generally People v Harris, 288 AD2d 610, 616, affd 99 NY2d 202; People

v Chatt, 77 AD3d 1285, 1286, lv denied 17 NY3d 793). Here, especially

in light of the significant evidence in the record supporting the

court’s determination not to credit the testimony of the spectator, we

see no reason to disturb that determination. Consequently, inasmuch

as there is no credible evidence indicating that any juror engaged in

misconduct, there was no need for a further inquiry of the individual

jurors.

Entered: November 18, 2016 Frances E. Cafarell

Clerk of the Court