| People v McCloud |
| 2008 NY Slip Op 03113 [50 AD3d 379] |
| April 10, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Christopher McCloud, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Eleanor J. Ostrow of counsel), forrespondent.
Judgment, Supreme Court, New York County (Micki A. Scherer, J., at motion; Lewis BartStone, J., at suppression hearing, jury trial and sentence), rendered September 16, 2005,convicting defendant, of criminal possession of stolen property in the fourth degree, andsentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.
The court properly denied defendant's suppression motion. Defendant sought to suppress anofficer's testimony as to defendant's true name on the ground that the officer elicited thisinformation, which was relevant evidence under the circumstances of the case, without providingMiranda warnings. Defendant's true name was admissible under the pedigree exception tothe warnings requirement (see Pennsylvania v Muniz, 496 US 582, 601-602 [1990];People v Rodney, 85 NY2d 289, 292-293 [1995]; People v Velazquez, 33 AD3d 352, 353 [2006], lv denied 7NY3d 929 [2006]). Since asking for the true name of an arrestee is the quintessential routinebooking question, without which it is impossible to process an arrest properly, it is irrelevantwhether the answer is reasonably likely to be incriminating (People v Alleyne, 34 AD3d 367 [2006], lv denied 8 NY3d918 [2007], cert denied 552 US —, 128 S Ct 192 [2007]). Furthermore, the courtwas not required to submit to the jury the issue of the voluntariness of defendant's statements asto his name. Since, as noted, Miranda warnings were not required, that was not a properissue for the jury, and there was no other factual issue raised at trial concerning voluntariness(see People v Cefaro, 23 NY2d 283, 288-289 [1968]).
The verdict was based on legally sufficient evidence and was not against the weight of theevidence, viewed in light of the court's charge (see People v Danielson, 9 NY3d 342, 348-349 [2007]). The trialtestimony showed that defendant attempted to make a purchase with a stolen credit card (PenalLaw § 165.45 [2]). It is immaterial whether the credit card either had expired or beencancelled or revoked when the defendant attempted to use it (see e.g. People v Peterson,216 AD2d 10 [1995], lv denied 86 NY2d 800 [1995]; People v Johnson, 214AD2d 478 [1995], lv denied 86 NY2d 733 [1995]). An expired or otherwise inactivecredit card may be used to make a purchase on credit, within the meaning of General BusinessLaw § 511 (1), if a merchant accepts it, albeit improvidently, thus extending credit to the[*2]purchaser. We have considered and rejected defendant'sremaining arguments on this issue.
The motion court properly denied the Mapp/Dunaway portion of defendant'ssuppression motion, without granting a hearing. Although the court incorrectly denied a hearingon the basis of defendant's failure to allege standing (see People v Burton, 6 NY3d 584 [2006]), the court was correct inits additional ruling that defendant's motion papers were insufficient to raise a factual issuewarranting a hearing. Defendant was on notice that the People were alleging he gave the creditcard at issue to an officer acting in an undercover capacity, under circumstances presenting noFourth Amendment issue whatsoever (see Hoffa v United States, 385 US 293 [1966];Lewis v United States, 385 US 206 [1966]), and his allegations failed to set forth analternative scenario or assert any basis for suppression (cf. People v Kolon, 37 AD3d 340,341 [2007], lv denied 8 NY3d 947 [2007]).
The court properly denied defendant's application made pursuant to Batson vKentucky (476 US 79 [1986]). Regardless of whether hybrid groups are cognizable underBatson, the People's peremptory challenge to the only African-American male panelistdid not, by itself, raise an inference of discrimination (see Johnson v California, 545 US162, 170 [2005]). While a prima facie showing of discrimination "may be made based on theperemptory challenge of a single juror that gives rise to an inference of discrimination"(People v Smocum, 99 NY2d 418, 422 [2003]), here there was no evidence that couldraise such an inference, and defendant's assertion that the panelist appeared favorable to theprosecution is without merit. We reject defendant's argument that a challenge to the sole memberof a cognizable class automatically creates a prima facie case of discrimination, without anysupporting circumstances (see People v Henderson, 305 AD2d 940, 940-941 [2003],lv denied 100 NY2d 582 [2003]). Concur—Mazzarelli, J.P., Andrias, Gonzalezand Acosta, JJ.