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The Manhattan district attorney’s office is investigating whether an executive at a modeling agency tried to tamper with a jury in a high-profile lawsuit last summer over cigarette smoke in the workplace. The executive, Mary Ann D’Angelico of Elite Model Management, who was a named defendant in the suit, allegedly had a conversation with a female juror in the courthouse public restroom in which she tried to disparage a former employee who was fired from the agency, jurors and attorneys who litigated the case told the New York Law Journal. The fired employee, Victoria Gallegos, had sued Elite over what she said was persistent smoking in the agency’s Manhattan office. Gallegos said the smoke aggravated her asthma, caused chronic sinusitis and made her cough up blood. When she asked Elite executives to stop fellow employees from smoking, she said, they did nothing and later fired her. The jury eventually returned a $5.2 million verdict in Gallegos’ favor, but Tuesday, Manhattan Supreme Court Justice Louis B. York, who presided over the trial, reduced the verdict to $4.3 million, and ruled that the tampering allegations did not warrant a mistrial ( see accompanying article). Near the end of the nine-week trial, D’Angelico allegedly told the juror that Gallegos had a history of troubled employment. She had been fired from other jobs, the juror was allegedly told, and sued a previous employer. Details about Gallegos’ employment history were not allowed into evidence, and her attorneys have said allegations about her past are false. D’Angelico’s criminal defense attorney, Daniel J. Horwitz, a partner at Carter Ledyard & Millburn, denied the allegations and said there was no attempt at tampering. “Whatever allegation of jury tampering there is we deny,” he said. “Ms. D’Angelico did not engage in any wrongdoing. There’s nothing here to warrant a prosecution.” Horwitz said D’Angelico still worked at Elite, where she handles financial administration, but she is no longer an executive. He said her change in status was not related to the Gallegos lawsuit. Barbara Thompson, a spokeswoman for Manhattan District Attorney Robert M. Morgenthau, confirmed that the office was investigating the matter but declined to reveal details. Another spokeswoman at the office said tampering with a juror in the first degree is an A Misdemeanor punishable by up to one year in prison. If D’Angelico’s alleged conversation was an attempt to mitigate any damages the jury might award Gallegos, it backfired: The juror she allegedly spoke to was the least sympathetic to Gallegos’ claims and was removed from the jury after the alleged conversation was revealed to the judge. After D’Angelico allegedly spoke to the juror, Barbara Yanoscik, Yanoscik soon told another juror about her conversation. The second juror, who is an attorney, immediately wrote a letter to Justice York about the alleged impropriety. In a lengthy interview, the attorney, John D. Albright, said he too was more sympathetic to the defendant modeling agency than the other jurors. Yanoscik did not return several calls seeking an interview. When York heard about the alleged conversation, he dismissed both jurors and referred the incident to the Manhattan district attorney’s office. The jury had already deliberated for a day in the damages phase of the trial, and the judge called upon two alternates to finish deliberations. He instructed the refashioned jury to ignore any previous deliberations and start from scratch. They returned a verdict of $5.2 million, including $2.6 million in punitive damages, after only a few hours. Gallegos had asked for only $4.6 million. NOVEL CLAIMS Gallegos’ suit was novel for its claims and the forceful personalities involved, from Gallegos herself, a part-time actress and sales whiz who had been profiled in the New Yorker magazine in 1998, to modeling agency mogul John Casablancas, the former chairman of Elite. Gallegos only worked at Elite for six weeks and Justice York allowed testimony from competing experts on the effect second-hand smoke could have on a person with asthma over such a short period. All those details, Albright said, made the jury’s task a difficult one, and emotions ran high from the outset. “We all worked very hard,” he said. “But it was heated.” A few jurors, he said, felt for Gallegos from the start, while he and Yanoscik thought more favorably of the defendant’s position. Some jurors, he said, could be adamant and caustic about their positions, and arguments were sometimes influenced by ethnic and social differences. “I was told explicitly that I don’t know what it’s like to have my civil rights violated, that I wouldn’t understand,” Albright said. At other times, he said, he was told that he was just “John Casablancas’ guy,” referring to the former chairman of Elite. In the end, he said, all six jurors agreed that Elite and its executives were liable for compensatory damages. After some discussion, he said, they decided on punitive damages against the company, but not any of the individual executives. Albright said a key factor in awarding punitive damages was that Gallegos’ co-workers had played practical jokes on her, such as leaving a lighter and matches on her desk. Weeks later, when it came time to deliberate about damages, though, Yanoscik went to Albright with a shocking story: She said she had encountered D’Angelico in the restroom and spoken to her about Gallegos’ past. “It just came spilling out,” Albright said. “‘Oh my God,’ I said, ‘you’ve been talking to the defendant? You know that I have to tell.” When Yanoscik spoke to the judge the next day, she said she had previously encountered D’Angelico in the restroom, but did not speak to her. When the two jurors were asked to come talk to Justice York about Albright’s letter, Albright said, the rest of the jurors “went fairly ballistic” and asked what was going on. “I think it changed the dynamic in the deliberations so much,” Albright said. “I can’t help thinking the jurors were mad at us and sending Barbara and me a message in that award.” When Justice York spoke to Yanoscik, he reprimanded her for using the public restroom rather than the one reserved for jurors. Yanoscik, according to Tuesday’s ruling, replied that another jury should have been given a similar admonition, raising concern that another juror had been tainted by meetings with a party or by her alleged conversation. In the end, though, York found there was no evidence that any other juror had been tainted. Fouzia Kaam, who served as an alternate on the case, said it was difficult to follow the judge’s instruction about which restroom to use. “We were all going to the bathroom every five minutes with all the coffee we were drinking,” Kaam said. She said it was also difficult to adhere to the cardinal rule that jurors should not speak to each other about a case outside the courtroom, especially when eating lunch or riding the subway together. Albright and another juror, she said, were particularly strong willed and never discussed the case, but other jurors did not have as much resolve. “Whether you want to or not, you get influenced,” she said. Kaam asked to be dismissed after the jury came back with its liability verdict and she was sent home. She said she was unsympathetic toward Gallegos and felt she could no longer continue since she disagreed with the liability verdict. Robert I. Goodman, who represented Elite at trial, and Paul H. Levinson of McLaughlin & Stern, who is lead counsel for Elite post trial, tried to convince Justice York that the allegations of tampering by one of their clients hopelessly tainted the jurors. “When we lost them, that was it,” Goodman said, referring to Yanoscik and Albright. “We were confronted by a jury disaster.” York, however, rejected those arguments, saying there was evidence to support the jury’s finding and no evidence that any other jurors were tainted. Albright said he was not aware of any other jurors who overheard Yanoscik’s restroom conversation or were told about it. Attempts to reach other jurors on the case were unsuccessful. Robert L. Herbst of Beldock, Levine & Hoffman, one of the attorneys who represented Gallegos, said this was a “clear case” of jury tampering that ought to be prosecuted. “To me it’s a crime that jury tampering is only a misdemeanor in New York, which as a result, the prosecutors tend to not be interested in what happens,” Herbst said. He said Elite should not benefit from D’Angelico’s alleged misdeeds by receiving a new trial on appeal. “They shot themselves in the foot and they shouldn’t be rewarded for it with a new trial and put people through the time and expenses of retrying this case,” he said. “It would be a ridiculous waste of time and expense.” Albright said he was disappointed that he was unable to complete his service, and he agreed that the investigation into D’Angelico ought to be investigated thoroughly. “The defendant has no business telling the juror anything outside the courtroom,” he said.

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