Opinion
381 KA 17–00203
05-01-2020
The PEOPLE of the State of New York, Respondent, v. Marcus A. NORMAN, Defendant–Appellant.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT. PATRICK E. SWANSON, DISTRICT ATTORNEY, MAYVILLE (MARILYN FIORE–LEHMAN OF COUNSEL), FOR RESPONDENT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT.
PATRICK E. SWANSON, DISTRICT ATTORNEY, MAYVILLE (MARILYN FIORE–LEHMAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of burglary in the second degree ( Penal Law § 140.25 [2] ). We reject defendant's contention that County Court erred in refusing to suppress identification testimony arising from a showup procedure during which defendant was identified by a resident of the apartment where the burglary was committed. We conclude that the showup procedure, which was conducted within two hours of the burglary, was " ‘reasonable under the circumstances’ " ( People v. Cedeno, 27 N.Y.3d 110, 123, 31 N.Y.S.3d 434, 50 N.E.3d 901 [2016], cert denied ––– U.S. ––––, 137 S. Ct. 205, 196 L.Ed.2d 133 [2016] ; see People v. Brisco, 99 N.Y.2d 596, 597, 758 N.Y.S.2d 262, 788 N.E.2d 611 [2003] ; People v. Duuvon, 77 N.Y.2d 541, 543, 569 N.Y.S.2d 346, 571 N.E.2d 654 [1991] ). The showup procedure was "part of a continuous, ongoing police investigation ..., which spanned two [municipalities] and involved multiple law enforcement agencies, due in large part to the flight of defendant" ( People v. Johnson, 167 A.D.3d 1512, 1513, 89 N.Y.S.3d 505 [4th Dept. 2018], lv. denied 33 N.Y.3d 949, 100 N.Y.S.3d 165, 123 N.E.3d 824 [2019] ), and was conducted "as soon as practicable following defendant's apprehension" ( People v. August, 33 A.D.3d 1046, 1048, 822 N.Y.S.2d 334 [3d Dept. 2006], lv denied 8 N.Y.3d 878, 832 N.Y.S.2d 490, 864 N.E.2d 620 [2007] ). Moreover, the showup procedure was not rendered unduly suggestive by the fact that defendant was handcuffed (see People v. Stanley, 108 A.D.3d 1129, 1130, 970 N.Y.S.2d 136 [4th Dept. 2013], lv denied 22 N.Y.3d 959, 977 N.Y.S.2d 190, 999 N.E.2d 555 [2013] ), or by a police officer's comments to the witness inasmuch as those comments " ‘merely conveyed what a witness of ordinary intelligence would have expected under the circumstances’ " ( August, 33 A.D.3d at 1049, 822 N.Y.S.2d 334 ; see People v. Williams, 15 A.D.3d 244, 246, 789 N.Y.S.2d 155 [1st Dept. 2005], lv denied 5 N.Y.3d 771, 801 N.Y.S.2d 266, 834 N.E.2d 1275 [2005] ).
Defendant contends that the court erred in rejecting his Batson challenge with respect to the People's exercise of a peremptory strike on a prospective juror. We reject that contention. The court's determination whether a proffered race-neutral reason for striking a prospective juror is pretextual is accorded great deference on appeal (see People v. Linder, 170 A.D.3d 1555, 1558, 95 N.Y.S.3d 681 [4th Dept. 2019], lv denied 33 N.Y.3d 1071, 105 N.Y.S.3d 12, 129 N.E.3d 332 [2019] ; People v. Larkins, 128 A.D.3d 1436, 1441–1442, 8 N.Y.S.3d 755 [4th Dept. 2015], lv denied 27 N.Y.3d 1001, 38 N.Y.S.3d 110, 59 N.E.3d 1222 [2016] ). Here, the People's proffered reason was that the prospective juror stated during voir dire that she had been the victim of a burglary and that she was dissatisfied with the non-resolution of her case. We conclude that the proffered reason was sufficient to satisfy "the People's ‘quite minimal’ burden of providing a race-neutral reason" for exercising a peremptory strike ( People v. Herrod, 174 A.D.3d 1322, 1323, 101 N.Y.S.3d 804 [4th Dept. 2019], lv denied 34 N.Y.3d 951, 110 N.Y.S.3d 649, 134 N.E.3d 648 [2019] ; see generally Linder, 170 A.D.3d at 1558, 95 N.Y.S.3d 681 ).
We also reject the contention of defendant that the court erred in denying his challenges for cause with respect to three prospective jurors. " CPL 270.20(1)(b) provides that a party may challenge a potential juror for cause if the juror ‘has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial’ " ( People v. Harris, 19 N.Y.3d 679, 685, 954 N.Y.S.2d 777, 978 N.E.2d 1246 [2012] ). Here, the three prospective jurors did not discuss any experiences or express any opinions that revealed any potential for bias or cast any serious doubt on their ability to render an impartial verdict, and thus they did not evince a state of mind that was "likely to preclude [them] from rendering an impartial verdict based upon the evidence adduced at the trial" ( CPL 270.20[1][b] ; cf. People v. Rice [appeal No. 1], 199 A.D.2d 1054, 1054, 608 N.Y.S.2d 29 [4th Dept. 1993] ).
We also reject defendant's contention that the court's refusal to discharge two sworn jurors deprived defendant of his right to a fair and impartial jury. In order to discharge a sworn juror, the court "must be convinced that the juror's knowledge will prevent [him or] her from rendering an impartial verdict" ( People v. Buford, 69 N.Y.2d 290, 299, 514 N.Y.S.2d 191, 506 N.E.2d 901 [1987] ). Here, upon learning of potential issues with the two sworn jurors, the court and defense counsel questioned those two jurors and elicited responses that they would be fair and impartial. On this record, we are unable to conclude that the court "could have been ‘convinced’ ..., based on any unequivocal responses of the juror[s], that the juror[s] [were] ‘grossly unqualified to serve in the case’ " ( People v. Telehany, 302 A.D.2d 927, 928, 754 N.Y.S.2d 508 [4th Dept. 2003] ; see CPL 270.35[1] ).
Defendant correctly concedes that he failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction inasmuch as he presented evidence after the court denied his motion for a trial order of dismissal at the close of the People's case, and he failed to renew his motion at the close of the proof (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001], rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 [2001] ; People v. Swail, 19 A.D.3d 1013, 1013, 796 N.Y.S.2d 797 [4th Dept. 2005], lv denied 6 N.Y.3d 759, 810 N.Y.S.2d 427, 843 N.E.2d 1167 [2005], reconsideration denied 6 N.Y.3d 853, 816 N.Y.S.2d 759, 849 N.E.2d 982 [2006] ). In any event, that contention lacks merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
We reject the further contention of defendant that he was denied effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). " ‘[I]t is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations’ for [defense] counsel's alleged shortcomings" ( People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998], quoting People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ). Defendant failed to meet that burden. The alleged instances of ineffective assistance concerning defense counsel's failure to make various objections or to seek curative instructions are "based largely on [defendant's] hindsight disagreements with ... trial strategies, and defendant failed to meet his burden of establishing the absence of any legitimate explanations for those strategies" ( People v. Rogers, 70 A.D.3d 1340, 1341, 894 N.Y.S.2d 313 [4th Dept. 2010], lv denied 14 N.Y.3d 892, 903 N.Y.S.2d 780, 929 N.E.2d 1015 [2010], cert denied 562 U.S. 969, 131 S.Ct. 475, 178 L.Ed.2d 302 [2010] [internal quotation marks omitted] ).
Finally, the sentence is not unduly harsh or severe.