| People v Washington |
| 2008 NY Slip Op 08406 [56 AD3d 258] |
| November 6, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Bernard Washington, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Jaime Bachrach of counsel), forrespondent.
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, andsentencing him to concurrent terms of seven years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's determinations concerning identification and credibility. Althoughthe victim did not identify defendant at trial, he made a reliable lineup identification. Thatidentification was corroborated by defendant's possession of the victim's cell phone, acircumstance for which defendant provided an implausible explanation.
Whether to provide an expanded identification charge, and the content of such a charge, arematters within a trial court's discretion (see People v Knight, 87 NY2d 873 [1995];People v Whalen, 59 NY2d 273, 278-279 [1983]), and we find that the court, whichdelivered a thorough charge on identification, properly exercised its discretion when it declinedto add language specifically directing the jury's attention to the cross-racial aspect of the victim'sidentification of defendant (see People v Applewhite, 298 AD2d 136 [2002], lvdenied 99 NY2d 625 [2003]).
The court properly denied defendant's application pursuant to Batson v Kentucky(476 US 79 [1986]). 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 asnonpretextual. Thus, despite ample opportunity to do so, defendant failed to preserve hissubstantive objections to the court's ultimate ruling (see People v Smocum, 99 NY2d418, 423-424 [2003]; People v Allen, 86 NY2d 101, 111 [1995]), and we decline toreview them in the interest of justice. Defendant also failed to preserve his claim that, in arrivingat its ruling, the court failed to follow the proper Batson procedure, and we likewisedecline to review it. As an alternative holding, we also reject all of defendant's substantive andprocedural claims on the merits. Viewed in context, the court's ultimate determination was aproper ruling, under step three of Batson, that the prosecutor's race-neutral reasons werenonpretextual, and the court implicitly made the appropriate factual findings (see People v Brown, 17 AD3d283, 284-285 [2005], lv denied 5 NY3d 804 [2005]). These findings are supportedby the record and entitled [*2]to great deference (see People vHernandez, 75 NY2d 350 [1990], affd 500 US 352 [1991]). While the court mayhave used the wrong nomenclature in describing its step-three ruling, that does not entitledefendant to a new trial. Concur—Andrias, J.P., Saxe, Gonzalez, Catterson and Acosta, JJ.