A Manhattan judge on Thursday rejected a defense bid to overturn the attempted-murder conviction of Avery Dunning after lawyers revealed that Dunning and a juror had recorded a series of sexual videos before his trial.
Dunning, 37, was convicted by a jury this summer of attempted murder, assault and related charges for shooting a 41-year-old neighbor in the head during a 2023 dispute. The revelation of what prosecutors and lawyers described as largely sexual, “pornographic” footage — some of which defense counsel said shows the juror pleasuring Dunning — surfaced after the jury returned its verdict and as Dunning was awaiting sentencing. He faces up to 25 years in prison.
Prosecutors and defense attorneys told Manhattan Supreme Court Judge Daniel Conviser that the videos were filmed on two occasions and amounted to about 15 clips. Dunning’s lawyer, Raymond Loving, said the material was discovered by Dunning’s mother, Lolita Dunning, after a monitored jail call in which her son warned, “You’re gonna see something you might not want to see.” The mother then searched his phone, found the videos and brought them to defense counsel, Loving said.
At hearings that followed, the juror, identified in court filings as Juror No. 8, testified that she had a one-night stand with Dunning in 2022 at her Harlem home after meeting him on Lenox Avenue. She told the court she did not recognize Dunning during the monthlong trial and only said she got a “clear view” of him after the jury returned its verdict. The juror also appeared at one hearing wearing a mask and said she was ill.
Defense lawyers argued the juror’s failure to disclose the prior sexual relationship during jury selection amounted to gross juror misconduct and warranted dismissal of the verdict. “These videos show Mr. Dunning receiving fellatio from a juror,” Loving told the judge, arguing there was no way the juror could have sat through the trial without recognizing the defendant.
Manhattan Assistant District Attorney Andrea Kimmel countered that Dunning had intentionally withheld the relationship from the court and from prosecutors until after the outcome, calling the disclosure a tactical move intended to “defraud the court.” Kimmel said the defendant had sandbagged the court by keeping the information secret until a conviction had been rendered.
Judge Conviser said he had reviewed the videos in camera with counsel and acknowledged there was “some degree of a sexual relationship” between Dunning and the juror. But he denied the defense motion to dismiss, finding that Dunning’s concealment, rather than the juror’s conduct during the trial, undercut the defense claim of taint. “That’s what this was — deception and defraud of the court,” Conviser said. “He could have easily taken care of this whole issue by just telling us what had happened instead of keeping it secret.”
Prosecutors said the jury had deliberated for two days before returning guilty verdicts. The charges stem from an incident in East Harlem in 2023 in which the victim and her husband confronted Dunning after she accused him of beating his girlfriend. Dunning shot the woman in the head, according to court records.
The videos, which court filings describe as explicit and sexual in nature, were viewed by the judge and attorneys but ordered sealed and not released to the public. Defense counsel said the footage was filmed by Dunning and that some clips show intimate acts involving the juror. The juror testified that she thought Dunning used the name “Ace” on social media and that she believed that was the name by which she knew him.
Attempts by reporters to reach Lolita Dunning were unsuccessful, and the Manhattan District Attorney’s Office declined to comment beyond its court filings. Loving said his office will seek an appeal. “I’ve been doing this for 30-plus years. This is the first case of this type that I’ve had,” he said after the hearing.
The case has drawn attention for its unusual combination of criminal charges, a post-trial disclosure of an intimate relationship between a juror and the defendant, and questions about whether the timing of that disclosure amounted to an effort to manipulate the judicial process. Conviser described the matter as “stranger than fiction” but concluded that dismissal of the conviction was not warranted because the defendant had not been candid with the court.
Dunning remains in custody pending sentencing. His conviction and the judge’s finding that he deceived the court are likely to be key issues on appeal if defense counsel pursues review in higher courts.