I respectfully dissent because I do not agree with the majority that County Court erred in denying defendant’s post-trial motion pursuant to CPL 330.30 (2) seeking to set aside the verdict based on juror misconduct. I dissent insofar as the majority concludes that reversal is required on that ground. Nevertheless, I would vote to modify the judgment as a matter of discretion in the interest of justice, and on the law, by reversing that part convicting defendant of sexual abuse in the second degree under count two of the indictment inasmuch as that count was rendered duplicitous by the testimony at trial, as I shall discuss herein. I would dismiss that count without prejudice to the People to re-present any appropriate charge under that count to another grand jury.
*1489“Generally, a jury verdict may not be impeached by probes into the jury’s deliberative process,” but CPL 330.30 embodies the “narrow exception to [that] general proposition” (People v Maragh, 94 NY2d 569, 573 [2000]). That statute provides, in relevant part, that the court may, upon motion of the defendant, set aside the verdict on the ground “[t]hat during the trial there occurred, out of the presence of the court, improper conduct by a juror, or improper conduct by another person in relation to a juror, which may have affected a substantial right of the defendant and which was not known to the defendant prior to the rendition of the verdict” (CPL 330.30 [2]).
Here, at the hearing on his CPL 330.30 motion, defendant presented the testimony of two jurors. The first testifying juror stated on direct examination that three other jurors, i.e., jurors Nos. 27, 68 and 98 (collectively, subject jurors), said “we deal with this every day” and “this is the pattern of how these things normally take place.” Based on the context of the first juror’s testimony, the testimony appears to indicate that the subject jurors were familiar with victims of sexual abuse. Juror No. 27 worked as the head strength and conditioning coach in a university athletic department, juror No. 68 was a caseworker with the Cattaraugus County Department of Social Services, and juror No. 98 worked as a “substance abuse, mental health counselor.” The first testifying juror did not state that the subject jurors had indicated that they counseled victims of sexual abuse, but maintained that the subject jurors said that their knowledge was based upon their professional backgrounds in dealing with such issues. The first testifying juror also indicated that his vote was influenced by the comments of the subject jurors during deliberations, and that he was the last juror to vote to convict defendant.
The cross-examination of the first testifying juror confirmed that he was influenced by the comments of the subject jurors, and explained the basis, or lack thereof, for his reliance on those jurors. The first testifying juror acknowledged that he learned of the backgrounds of the subject jurors during voir dire, and indicated that he “just assumed” that one of the opinions expressed by juror No. 68 during deliberations “was because of her professional experience.” Indeed, the first testifying juror agreed that the subject jurors never indicated during deliberations that they worked with or counseled sexual abuse victims, and he concluded his testimony on cross-examination with an expression of remorse over having been the last of the jurors to change his mind and vote to convict defendant.
For her part, the second testifying juror stated at the hearing *1490that juror Nos. 68 and 98 had indicated during deliberations that they had a specialized background in sexual abuse issues and had worked with sexually abused children. The second testifying juror indicated that assurances of juror Nos. 68 and 98 assuaged her concerns with parts of the victim’s testimony, and that she eventually relied on the knowledge and opinions of juror Nos. 68 and 98 in changing her vote from acquittal to conviction.
On cross-examination, however, the second testifying juror, who was not a holdout juror, was equivocal as to whether juror Nos. 68 and 98 influenced her vote. The second testifying juror denied “saying that [she] gave somebody’s opinion more credibility than somebody else’s,” and contended that she “ha[s] [her] own mind,” “listened” during deliberations and “took [the opinion in question] into [her] own mind and processed it.”
Subsequent to the testimony of defendant’s witnesses at the CPL 330.30 hearing, and at the People’s request, the court denied the motion on the ground that defendant failed to meet his burden of proof even in the absence of testimony from witnesses yet to be presented by the People. The court later issued a written decision in which it determined “that the complained of conduct . . . does not rise to the level of juror misconduct.” That conclusion was based, at least in part, on the court’s finding that the first testifying juror “admitted that he regretted his verdict and conceded that he did not hear specific reference to any one juror’s professional experience.” In view of its citations to, inter alia, People v Rodriguez (100 NY2d 30 [2003]), People v Robinson (1 AD3d 985 [2003], lv denied 1 NY3d 633 [2004], 2 NY3d 805 [2004]) and People v Stevens (275 AD2d 902 [2000], lv denied 96 NY2d 807 [2001]), and its finding that the second testifying juror “adamantly said she made up her own mind on the verdict,” the court also appeared to conclude that the conduct at issue did not prejudice defendant (cf. People v Concepcion, 17 NY3d 192, 195 [2011]).
“In order to prevail on [his] motion, defendant was required to establish ‘by a preponderance of the evidence that improper conduct by a juror prejudiced a substantial right of defendant” (People v Carmichael, 68 AD3d 1704, 1705 [2009], lv denied 14 NY3d 798 [2010]; see CPL 330.40 [2] [g]). “The trial court is invested with discretion and post[-]trial fact-finding powers to ascertain and determine whether the activity during deliberations constituted misconduct and whether the verdict should be set aside and a new trial ordered” (Maragh, 94 NY2d at 574; see Rodriguez, 100 NY2d at 35), and, under these circumstances, I cannot agree with the majority that the disputed activity during deliberations warrants impeachment of the verdict.
*1491Put simply, the testimony of the first testifying juror, who seemed to have second thoughts about the verdict and who could not state that any of the subject jurors had indicated during deliberations that they worked with or counseled sexual abuse victims, does not support a finding of juror misconduct (see generally People v Santi, 3 NY3d 234, 249-250 [2004]). “The court’s determination that there was no misconduct . . . must be afforded great weight” (People v Brown, 278 AD2d 920 [2000], lv denied 96 NY2d 781 [2001]), and there is no reason to disturb it on the basis of the testimony of the first testifying juror.
Even assuming, arguendo, that the testimony of the second testifying juror establishes juror misconduct (see generally Santi, 3 NY3d at 249; Maragh, 94 NY2d at 574), I conclude under these circumstances there was no showing of prejudice to a “substantial right” of defendant as a. result of that misconduct (CPL 330.30 [2]; see Carmichael, 68 AD3d at 1705-1706). Inasmuch as the second testifying juror, who was not a holdout juror, admitted on cross-examination that she had an independent mind and thought process with respect to the verdict, I cannot conclude that defendant established that the second testifying juror based her verdict on something other than the evidence presented at trial (cf. Carmichael, 68 AD3d at 1705-1706; see generally Robinson, 1 AD3d at 986). Thus, in my view, defendant did not meet his burden of showing “by a preponderance of the evidence” that the conduct at issue prejudiced a substantial right of defendant (CPL 330.40 [2] [g]; see Rodriguez, 100 NY2d at 35; Carmichael, 68 AD3d at 1705-1706), and there is no reason to disturb the court’s determination on that basis (see Brown, 278 AD2d 920).
I turn now to the remaining issues not addressed by the majority in light of its determination with respect to defendant’s post-trial motion pursuant to CPL 330.30 (2). Defendant challenges the procedure employed by the court in responding to a jury note, specifically contending that the court erred in issuing supplemental instructions to the jury in his absence. Inasmuch as defense counsel was given notice of the note, its contents and the court’s intended response thereto, “[defendant therefore was required to register an objection in order to preserve for our review his challenge to the procedure employed by the court in responding to the jury note[ ], ‘at a time when any error by the court could have been obviated by timely objection’ ” (People v Rivera, 83 AD3d 1370, 1370-1371 [2011], quoting People v Starling, 85 NY2d 509, 516 [1995]; see People v Kadarko, 14 NY3d 426, 429 [2010]). I would not exercise my power to address that contention as a matter of discretion in the interest of *1492justice (see CPL 470.15 [6] [a]). Contrary to defendant’s further contention, defense counsel was not ineffective in failing to object to the procedure employed by the court in responding to the note. Defendant failed “ ‘to demonstrate the absence of strategic or other legitimate explanations’ for [defense] counsel’s alleged shortcomings” (People v Benevento, 91 NY2d 708, 712 [1998], quoting People v Rivera, 71 NY2d 705, 709 [1988]; see generally People v Baldi, 54 NY2d 137, 147 [1981]).
Defendant failed to preserve for our review his contention that the court’s Mien charge was coercive, having failed to object to the charge on that ground (Allen v United States, 164 US 492 [1896]; see People v Vassar, 30 AD3d 1051 [2006], lv denied 7 NY3d 796 [2006]). In any event, that contention lacks merit (see People v Roman, 85 AD3d 1630, 1631 [2011], lv denied 17 NY3d 821 [2011]). “Furthermore, ‘[b]ecause the Allen charge was not improper, the defendant’s ineffective assistance of counsel claim, [insofar as it is] based ... on his attorney’s failure to object to the charge, is without merit’ ” (id.).
Defendant also failed to preserve for our review his contention that the indictment is duplicitous (see People v Becoats, 17 NY3d 643, 651 [2011]; People v Heard, 72 AD3d 1630 [2010], lv denied 15 NY3d 852 [2010]). In any event, that contention is moot with respect to counts one and four of the indictment inasmuch as defendant was acquitted of those counts (see People v Haberer, 24 AD3d 1283 [2005], lv denied 7 NY3d 756, 848 [2006]). I would, however, exercise my power to review defendant’s contention with respect to count two of the indictment as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]), because I agree with defendant that count two, charging him with sexual abuse in the second degree (Penal Law § 130.60 [2]), was rendered duplicitous by the testimony at trial (see People v Bennett, 52 AD3d 1185, 1186 [2008], lv denied 11 NY3d 734 [2008]). I would therefore modify the judgment accordingly, as set forth herein (see id.; People v Bracewell, 34 AD3d 1197, 1198-1199 [2006]).
Finally, I have reviewed defendant’s remaining contentions and conclude that none requires reversal or further modification of the judgment. Present — Scudder, RJ., Centra, Fahey, Peradotto and Lindley, JJ. [Prior Case History: 30 Misc 3d 1240(A), 2011 NY Slip Op 50414(U).]