| People v Bailey |
| 2009 NY Slip Op 07316 [66 AD3d 491] |
| October 13, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Michael Bailey, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Jaime Bachrach of counsel), forrespondent.
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J., at hearing; Edward J.McLaughlin, J., at jury trial and sentence), rendered January 25, 2007, convicting defendant ofgrand larceny in the fourth degree and criminal possession of stolen property in the fourthdegree, and sentencing him, as a second felony offender, to concurrent terms of 2 to 4 years,unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinationsconcerning credibility and identification. The fast-paced chain of events, viewed as a whole,leads to the inescapable conclusion that defendant stole the victim's credit card.
The court's Sandoval ruling balanced the appropriate factors and was a properexercise of discretion (see People v Hayes, 97 NY2d 203 [2002]; People vWalker, 83 NY2d 455, 458-459 [1994]; People v Pavao, 59 NY2d 282, 292 [1983]).
During voir dire, the court made several unusual remarks to prospective jurors that wereill-advised, but do not warrant reversal. Defendant's claim that the court's hostile conduct towarda particular discharged panelist may have inhibited other panelists from speaking freely isspeculative. Although the court's colloquy with another panelist on the subject of single-witnessidentification cases contained irrelevant and inappropriate references to a rape case, the courtcorrectly stated the law on this subject and its remarks were not prejudicial.
Defendant's remaining claims concerning jury selection, and his evidentiary claims regardingphotographic evidence and alleged bolstering, are unpreserved and we decline to review them inthe interest of justice. As an alternative holding, we find no basis for reversal.
We reject defendant's arguments concerning lack of CPL 710.30 (1) (b) notice. Since theinitial identification, when the witness first alerted a police officer and pointed out defendantacross the street, was a witness-initiated procedure, it did not require notice (People vDixon, 85 NY2d 218, 223 [1995]). Although notice was required for the subsequentidentification, which involved a police canvass, defendant learned of this identification duringthe hearing and [*2]proceeded to litigate its lawfulness (seePeople v Kirkland, 89 NY2d 903 [1996]).
We perceive no basis for reducing the sentence. Concur—Saxe, J.P., Nardelli,Buckley, Acosta and Freedman, JJ.