Opinion
01-02-2015
The PEOPLE of the State of New York, Respondent, v. Michael ROSEBORO, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, and SCONIERS, JJ.
MEMORANDUM: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of burglary in the first degree ( Penal Law § 140.30[1], [4] ) and two counts of robbery in the first degree ( § 160.15[2], [4] ) arising from his participation in a home invasion robbery. We reject defendant's contention that Supreme Court erred in refusing to suppress physical evidence, his statements to the police, and identification testimony as the fruits of an illegal stop. The record of the suppression hearing supports the court's determination that the police officers' pursuit, stop, and detention of defendant were supported by a reasonable suspicion that defendant had committed a crime (see People v. Martinez, 80 N.Y.2d 444, 446, 591 N.Y.S.2d 823, 606 N.E.2d 951 ; People v. Bolden, 109 A.D.3d 1170, 1172, 973N.Y.S.2d 500, lv. denied 22 N.Y.3d 1039, 981 N.Y.S.2d 372, 4 N.E.3d 384 ). The officers' questions following the stop, concerning the location of the gun and the presence of sharp objects in defendant's pockets, did not constitute interrogation (see People v. Chestnut, 51 N.Y.2d 14, 22–23, 431 N.Y.S.2d 485, 409 N.E.2d 958, cert. denied 449 U.S. 1018, 101 S.Ct. 582, 66 L.Ed.2d 479 ), and thus the court properly refused to suppress defendant's responses to those questions. The court also properly refused to suppress defendant's statement to a police officer at the jail, which was spontaneous and not the product of interrogation (see People v. Lynes, 49 N.Y.2d 286, 294–295, 425 N.Y.S.2d 295, 401 N.E.2d 405 ). The court also properly determined that the showup, conducted in temporal and geographic proximity to the crime, was reasonable under the circumstances (see People v. Woodard, 83 A.D.3d 1440, 1441, 919 N.Y.S.2d 718, lv. denied 17 N.Y.3d 803, 929 N.Y.S.2d 111, 952 N.E.2d 1106 ; People v. Delarosa, 28 A.D.3d 1186, 1186–1187, 813 N.Y.S.2d 610, lv. denied 7 N.Y.3d 811, 822 N.Y.S.2d 486, 855 N.E.2d 802 ). The composition of the photo array was not unduly suggestive, inasmuch as it did not "create a substantial likelihood that ... defendant would be singled out for identification" ( People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 ), nor was the photo array unduly suggestive by reason of the fact that it was viewed by the same witness who identified defendant in the showup (see People v. Brown, 254 A.D.2d 781, 782, 680 N.Y.S.2d 328, lv. denied 92 N.Y.2d 1029, 684 N.Y.S.2d 494, 707 N.E.2d 449 ).
We reject defendant's further contention that he was denied due process as a result of the court's rulings. The court properly denied defendant's challenge for cause to a prospective juror whose parents had been victims of a home invasion robbery, inasmuch as that prospective juror "never expressed any doubt concerning [her] ability to be fair and impartial" ( People v. Odum, 67 A.D.3d 1465, 1465, 890 N.Y.S.2d 241, lv. denied 14 N.Y.3d 804, 899 N.Y.S.2d 138, 925 N.E.2d 942, reconsideration denied 15 N.Y.3d 755, 906 N.Y.S.2d 828, 933 N.E.2d 227, cert. denied 562 U.S. 931, 131 S.Ct. 326, 178 L.Ed.2d 212 ). The court's Sandoval ruling did not constitute an abuse of discretion (see People v. Hawkins, 48 A.D.3d 1279, 1281, 851 N.Y.S.2d 789, affd. 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946 ), nor did the court abuse its discretion in directing the readback of testimony by two court reporters in the format of a role play, with one court reporter reading back questions and the second reading back answers (see generally People v. Smith, 21 A.D.3d 1277, 1277–1278, 801 N.Y.S.2d 663, lv. denied 7 N.Y.3d 763, 819 N.Y.S.2d 889, 853 N.E.2d 260 ). That format did not create the risk of conveying to the jury that the court favored either party (see People v. Alcide, 21 N.Y.3d 687, 695, 976 N.Y.S.2d 432, 998 N.E.2d 1056 ).
Defendant failed to preserve for review his challenge to the sufficiency of the evidence (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 ). Viewing the evidence in light of the elements of the crimes 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 ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Defendant also failed to preserve his contention that he was denied a fair trial by prosecutorial misconduct (see People v. Ross, 118 A.D.3d 1413, 1416–1417, 988 N.Y.S.2d 756, lv. denied 24 N.Y.3d 964, 996 N.Y.S.2d 223, 20 N.E.3d 1003 ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.