Opinion
2005-1429 N CR.
Decided December 19, 2007.
Appeal from a judgment of the District Court of Nassau County, First District (David Gross, J.), rendered August 17, 2005. The judgment convicted defendant, upon a jury verdict, of criminal mischief in the fourth degree.
Judgment of conviction affirmed.
PRESENT: RUDOLPH, P.J., McCABE and TANENBAUM, JJ.
After the prosecutor exercised a preremptory challenge to excuse a prospective juror who was a member of defendant's minority race, to which challenge the defense objected ( Batson v Kentucky, 476 US 79), the prosecutor provided nondiscriminatory reasons for the challenge, inter alia, the juror's argumentative responses to his questions during the voir dire and the juror's perceived racial victimization by police during an investigation of an offense in which the juror was not involved. "In the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed" ( Hernandez v New York, 500 US 352, 365). It is not necessary that the explanation be "persuasive, or even plausible" ( People v Allen, 86 NY2d 101, 110, quoting Purkett v Elem, 514 US 765, 768), only that the reason for exercising the challenges does not deny equal protection ( Purkett v Elem, 514 US at 769). The record herein amply supports the trial court's determination that the prosecutor provided credible, race-neutral and non-pretextual explanations for the exercise of the peremptory strike, which determination is entitled to "great deference" on appeal ( e.g. People v Rivera, 308 AD2d 602, 603; People v Fuller, 302 AD2d 405 ).
We also find that the People timely notified the defense of the complainant's identification of defendant at the May 9, 2003 arrest scene, with the requisite specifics, to satisfy the requirements of CPL 710.30 (1) (b) and (2) ( see People v Lopez, 84 NY2d 425, 428). The defense possessed the information necessary to obtain a hearing on the admissibility of that identification (CPL 710.60 [b]; 710.20 [6]; see People v Dixon, 85 NY2d 218, 222; People v Rodriguez, 79 NY2d 445, 453) and, having determined to forgo such a hearing, waived the suppression claim ( People v Lugo, 309 AD2d 512, 513). It is noted that the record does not support defendant's argument that in determining not to seek a suppression hearing she relied on the prosecutor's misstatement that the identification procedure was not police arranged ( see People v Grajales, 8 NY3d 861, 862; People v Gissendanner, 48 NY2d 543, 552). In the court below, the defense did not challenge the prosecutor's claim that his statements, during informal conversations prior to trial, were based on the facts then known to the prosecutor. If the defense elected to rely on that analysis and not seek suppression, it did so at its risk.
Lastly, we find the challenges to the legal sufficiency of the identification evidence of defendant as the person who vandalized the complainant's automobile and of the proof that defendant committed the offense, without merit. An identification need not be based upon, or even necessarily include, facial recognition ( e.g. Matter of Jonathan H. , 39 AD3d 856 , 857; People v Welcome, 181 AD2d 628; Matter of Ryan W., 143 AD2d 435, 436-437) and the weight to be accorded a person's identification of another as the perpetrator of a crime remains "a question primarily for the factfinder, unless it is incredible as a matter of law" ( Matter of Kashawn B. , 4 AD3d 469, 470; see also People v Cuffie, 163 AD2d 485, 486; Matter of Ryan W., 143 AD2d at 436]). Here, the complainant testified credibly that he was involved in a verbal altercation with defendant over the complainant's access to a parking space in which defendant was standing, conversing with friends. The complainant testified that during the altercation, he was only a few feet distant from defendant and had ample opportunity to observe distinctive aspects of defendant's physiognomy and dress. On that basis, we do not find it incredible, as a matter of law, that minutes later, from the window of a nearby building, complainant was able to identify defendant as the person walking around his vehicle, only inches from it.
Viewing the evidence in the light most favorable to the People, including the fact that only minutes after observing defendant circling his vehicle, complainant discovered that his vehicle had been scratched on three sides ( People v Cabey, 85 NY2d 417, 421; People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish defendant's guilt of criminal mischief in the fourth degree (Penal Law § 145.00) beyond a reasonable doubt ( People v Conway , 6 NY3d 869 , 872). Moreover, in the exercise of our factual review power, we find that the verdict was not against the weight of the evidence ( People v Romero , 7 NY3d 633).
Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.