Opinion
October 12, 1995
Appeal from the Supreme Court, New York County (James Leff, J.).
Contrary to defendant's argument that the evidence showed her to be an innocent bystander and unwitting scapegoat of a robbery staged by the complainant, defendant's guilt was proven by legally sufficient evidence that she observed the complainant receive a large sum of cash at a bank teller's window, followed her out of the bank, waited for an unapprehended accomplice to hit her over the head with an egg, jumped on and struggled with her and stole her purse while distracting her with false claims that she was injured.
The court did not improvidently exercise its discretion in permitting a police detective to testify as an expert on the various roles played by the participants in a sophisticated criminal technique known as distraction robberies, since such "help[ed] to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror" ( De Long v. County of Erie, 60 N.Y.2d 296, 307). The testimony was particularly relevant considering defendant's claim that she was an innocent bystander, and her reliance on the failure to recover the stolen purse. We reject defendant's remaining contentions with respect to the expert testimony.
Defendant's contention that the court should have conducted an inquiry into the possible bias of a juror who verbally responded to rhetorical questions presented by the prosecutor in his summation is unpreserved for appellate review as a matter of law since "[d]efense counsel did not request an in camera interview with the juror, nor did he object to the Trial Judge's apparent inquiry by means of personally observing the jurors" ( People v Jones, 173 A.D.2d 359, lv denied 78 N.Y.2d 1077). We decline to review the claim in the interest of justice. Were we to review it, we would note the latitude accorded the Trial Judge in making the findings necessary to determine whether a juror is grossly unqualified under CPL 270.35 ( People v. Rodriguez, 71 N.Y.2d 214, 219), and find nothing in the record to demonstrate that the juror's behavior was indicative of bias or affected the other jurors.
As the People concede, the sentence must be vacated and the matter remanded for resentencing since the court sentenced defendant without benefit of a presentence report ( People v Villegas, 146 A.D.2d 228).
Concur — Murphy, P.J., Rubin, Kupferman and Williams, JJ.