Opinion
(Ind. No. 2048/98)
Argued March 9, 2001.
August 20, 2001.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Barbaro, J.), rendered March 30, 1999, convicting him of robbery in the first degree, attempted robbery in the first degree, and assault in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
Lynn W. L. Fahey, New York, N.Y., and Patterson, Belknap, Webb Tyler, LLP, New York, N.Y. (Zachary M. Ratzman of counsel), for appellant (one brief filed).
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, Caroline R. Donhauser, and Clifford Chance Rogers Wells, LLP [Nicholas P. Crowell] of counsel), for respondent.
Before: SONDRA MILLER, J.P., WILLIAM D. FRIEDMANN, SANDRA J. FEUERSTEIN, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that the hearing court erred in finding that the police had reasonable suspicion to stop and detain him was not adequately preserved for appellate review (see, CPL 470.05; People v. Gray, 86 N.Y.2d 10; People v. Douglas, 254 A.D.2d 367). In any event, the contention lacks merit. Under the circumstances of this case, the hearing court did not err in finding that the police had reasonable suspicion to stop and detain the defendant. The police had a reasonable belief that the defendant had just committed at least one robbery, as well as an attempted robbery with a knife (see, People v. Martinez, 80 N.Y.2d 444; People v. Hollman, 79 N.Y.2d 181; People v. Hicks, 68 N.Y.2d 234; People v. Farr, 262 A.D.2d 580; People v. Schollin, 255 A.D.2d 465; People v. Johnson, 102 A.D.2d 616). As a result of a prompt showup identification at which the defendant was positively identified as the perpetrator, which occurred while the defendant was lawfully detained, the police had probable cause to arrest the defendant.
There is no merit to the defendant's contention that the prosecutor exercised peremptory challenges against three prospective black jurors in a racially-discriminatory manner, in violation of Batson v. Kentucky ( 476 U.S. 79). After the prosecutor provided facially-neutral reasons for rejecting the challenged jurors (see, People v. Payne, 88 N.Y.2d 172, 181; People v. Allen, 86 N.Y.2d 101, 109-110; see also, People v. Richardson, 193 A.D.2d 969; People v. Feliciano, 228 A.D.2d 519), the burden shifted to the defendant to demonstrate that the explanations were pretextual (see, People v. Payne, supra, at 181). The defendant failed to sustain his burden of demonstrating that the disputed challenges were the product of purposeful discrimination (see, People v. Allen, 278 A.D.2d 331; People v. Guzman, 267 A.D.2d 471; People v. Queen, 258 A.D.2d 480; see also, People v. Sanchez, 260 A.D.2d 178).
The defendant's contention that the evidence presented at trial was legally insufficient to establish that one of the complainants suffered "physical injury" within the meaning of Penal Law — 10.00(9), is unpreserved for appellate review (see, CPL 470.05; People v. Gray, 86 N.Y.2d 10). In any event, contrary to the defendant's contention, there was legally sufficient evidence adduced at trial to establish that the complainant in question suffered "physical injury" within the meaning of Penal Law — 10.00(9) (see, People v. Tejeda, 165 A.D.2d 683, affd 78 N.Y.2d 936; People v. Rivera, 183 A.D.2d 792; People v. Jones, 173 A.D.2d 359; see also, People v. Contes, 60 N.Y.2d 620), since, as a consequence of being stabbed by the defendant, the complainant sustained a scar on his forearm.
The defendant's remaining contentions are without merit.