THE PEOPLE &C., RESPONDENT, v. JOHN A. CERESOLI, APPELLANT.

    88 N.Y.2d 925, 669 N.E.2d 1111, 646 N.Y.S.2d 789 (1996).
    June 28, 1996

   4 No. 209 (1996 NY Int. 151)
   Decided June 28, 1996
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   This memorandum is uncorrected and subject to revision before
   publication in the New York Reports.

    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.