Opinion
No. 4474.
November 6, 2008.
Judgment, Supreme Court, New York County (Michael A. Corriero, J.), rendered August 10, 2006, convicting defendant, after a jury trial, of robbery in the first and second degrees, and sentencing him to concurrent terms of seven years, unanimously affirmed.
Robert S. Dean, Center for Appellate Litigation, New York (Jonathan M. Kirshbaum of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Jaime Bachrach of counsel), for respondent.
Andrias, J.P., Saxe, Gonzalez, Catterson and Acosta, JJ.
The verdict was not against the weight of the evidence ( see People v Danielson, 9 NY3d 342, 348-349). There is no basis for disturbing the jury's determinations concerning identification and credibility. Although the victim did not identify defendant at trial, he made a reliable lineup identification. That identification was corroborated by defendant's possession of the victim's cell phone, a circumstance for which defendant provided an implausible explanation.
Whether to provide an expanded identification charge, and the content of such a charge, are matters within a trial court's discretion ( see People v Knight, 87 NY2d 873; People v Whalen, 59 NY2d 273, 278-279), and we find that the court, which delivered a thorough charge on identification, properly exercised its discretion when it declined to add language specifically directing the jury's attention to the cross-racial aspect of the victim's identification of defendant ( see People v Applewhite, 298 AD2d 136, lv denied 99 NY2d 625).
The court properly denied defendant's application pursuant to Batson v Kentucky ( 476 US 79). After the prosecution explained its reasons for the challenges at issue, defense counsel remained silent and raised no objection when the court accepted these reasons as nonpretextual. Thus, despite ample opportunity to do so, defendant failed to preserve his substantive objections to the court's ultimate ruling ( see People v Smocum, 99 NY2d 418, 423-424; People v Allen, 86 NY2d 101, 111), and we decline to review them in the interest of justice. Defendant also failed to preserve his claim that, in arriving at its ruling, the court failed to follow the proper Batson procedure, and we likewise decline to review it. As an alternative holding, we also reject all of defendant's substantive and procedural claims on the merits. Viewed in context, the court's ultimate determination was a proper ruling, under step three of Batson, that the prosecutor's race-neutral reasons were nonpretextual, and the court implicitly made the appropriate factual findings ( see People v Brown, 17 AD3d 283, 284-285, lv denied 5 NY3d 804). These findings are supported by the record and entitled to great deference ( see People v Hernandez, 75 NY2d 350, affd 500 US 352). While the court may have used the wrong nomenclature in describing its step-three ruling, that does not entitle defendant to a new trial.