Opinion
2014-01-7
The PEOPLE of the State of New York, Respondent, v. Bobby WALLACE, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Lawrence T. Hausman of counsel), and Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York (David K. Kessler of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ellen S. Friedman of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Lawrence T. Hausman of counsel), and Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York (David K. Kessler of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ellen S. Friedman of counsel), for respondent.
SWEENY, J.P., ACOSTA, SAXE, MOSKOWITZ, JJ.
Judgment, Supreme Court, New York County (Patricia M. Nunez, J.), rendered June 2, 2011, convicting defendant, after a jury trial, of assault in the second degree as a hate crime, and sentencing him to a term of 3 1/2 years, unanimously affirmed.
The court properly denied defendant's challenge for cause to a prospective juror. The mere making of a challenge for cause, which asserted other grounds, did not preserve defendant's specific claim that the panelist's experience as a crime victim may have affected her impartiality ( see e.g. People v. Deschamps, 256 A.D.2d 13, 680 N.Y.S.2d 842 [1st Dept. 1998], lv. denied93 N.Y.2d 923, 693 N.Y.S.2d 507, 715 N.E.2d 510 [1999] ), and we decline to review it in the interest of justice. As an alternative holding, we find that when the panelist's responses are viewed as a whole, they provide the requisite assurance of impartiality, which was sufficient to cover any concern about the effect of her background as a crime victim ( see People v. Shulman, 6 N.Y.3d 1, 27, 809 N.Y.S.2d 485, 843 N.E.2d 125 [2005] ).
Defendant's dismissal motion based on the general ground of legal insufficiency did not preserve his present arguments in that regard ( see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ), and we decline to review them in the interest of justice. As an alternative holding, we reject them on the merits. We also find that the verdict was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations. In light of the unsolicited and inflammatory comments made by defendant before and after the assault, the evidence supports the inference that defendant intentionally committed the specified offense of second-degree assault at least “ in substantial part because of a belief or perception regarding the race, color, national origin, [or] ancestry” of the victim (Penal Law § 485.05[1][b] [emphasis added] ).
The court properly denied defendant's suppression motion. Under the circumstances, the police were not required to provide Miranda warnings prior to making investigatory inquiries of defendant as they arrived at the scene of the incident. A reasonable innocent person in defendant's position would not have thought he was in custody ( see Stansbury v. California, 511 U.S. 318, 325, 114 S.Ct. 1526, 128 L.Ed.2d 293 [1994]; People v. Yukl, 25 N.Y.2d 585, 307 N.Y.S.2d 857, 256 N.E.2d 172 [1969], cert. denied400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 [1970]; People v. Dillhunt, 41 A.D.3d 216, 217, 839 N.Y.S.2d 18 [2007], lv. denied10 N.Y.3d 764, 854 N.Y.S.2d 325, 883 N.E.2d 1260 [2008] ). In any event, to the extent there was an investigatory stop, it did not require Miranda warnings ( see Berkemer v. McCarty, 468 U.S. 420, 439–440, 104 S.Ct. 3138, 82 L.Ed.2d 317 [1984]; People v. Bennett, 70 N.Y.2d 891, 524 N.Y.S.2d 378, 519 N.E.2d 289 [1987] ). Furthermore, there was no interrogation requiring warnings because the officer's inquiries were made to clarify the situation ( see People v. Johnson, 59 N.Y.2d 1014, 466 N.Y.S.2d 957, 453 N.E.2d 1246 [1983] ), or were permissible efforts to locate a weapon in the interest of public safety ( see People v. Johnson, 46 A.D.3d 276, 277, 847 N.Y.S.2d 74 [1st Dept. 2007], lv. denied10 N.Y.3d 865, 860 N.Y.S.2d 491, 890 N.E.2d 254 [2008] ).
The court properly directed a court officer to perform the ministerial act of informing the deliberating jury that the court had denied the jury's oral request to take notes during supplemental instructions ( see People v. Jonson, 27 A.D.3d 289, 811 N.Y.S.2d 366 [1st Dept. 2006], lv. denied6 N.Y.3d 895, 817 N.Y.S.2d 630, 850 N.E.2d 677 [2006] ).