| People v Ross |
| 2011 NY Slip Op 02909 [83 AD3d 741] |
| April 5, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Rudolph Ross, Appellant. |
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Appeal by the defendant from a judgment of the Supreme Court, Queens County (Roman,J.), rendered April 15, 2008, convicting him of robbery in the first degree, robbery in the seconddegree, criminal possession of stolen property in the fifth degree, and criminal possession of aweapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up forreview the denial, after a hearing (Grosso, J.), of those branches of the defendant's omnibusmotion which were to suppress physical evidence and identification testimony.
Ordered that the judgment is affirmed.
At about 1:45 a.m. on August 18, 2007, three uniformed police officers were patrolling aQueens neighborhood when they saw a man chasing the defendant down a residential street.When the officers exited their patrol car, the man who had been chasing the defendant stopped tospeak to one of them. After making eye contact with a different officer, the defendant ran past thepatrol car and into the backyard of private residence. Two of the officers followed the defendantinto the backyard, where they found him hiding under a pile of leaves. The defendant was brieflydetained and brought to the front of the residence, where the man who had been chasing himidentified the defendant as the individual who had just robbed him.
Contrary to the defendant's contention, the police conduct in this case was justified at itsinception and reasonably limited in scope at each step in response to the circumstances presented(see People v Sierra, 83 NY2d 928, 930 [1994]; People v De Bour, 40 NY2d 210,222-223 [1976]; People vGrunwald, 29 AD3d 33, 38 [2006]; People v Dewese, 21 AD3d 426, 426-427 [2005]; People vReyes, 272 AD2d 244 [2000]; People v Harris, 221 AD2d 366, 367 [1995];People v Velasquez, 217 AD2d 510, 511 [1995]). Accordingly, the hearing courtproperly denied those branches of the defendant's omnibus motion which were to suppresscertain physical evidence recovered from the defendant, as well as identification testimony.
The defendant further contends that the prosecutor's employment-based explanation forstriking an African-American prospective juror was a pretext for discrimination in violation ofBatson v Kentucky (476 US 79 [1986]) because the prosecutor did not relate theprospective juror's employment as a psychologist to the specific facts of this case. However,since the defendant did not [*2]raise this argument before the trialcourt, it is unpreserved for appellate review (see People v Holloway, 71 AD3d 1486, 1487 [2010]; People v Bowman, 58 AD3d 747[2009]; People v Brown, 295 AD2d 442 [2002]; People v Morrison, 235 AD2d553, 554 [1997]). In any event, although consideration of "[w]hether a proffered reason relates tothe facts of a case . . . is certainly a factor relevant to a court's determination ofpretext," it is not "automatically dispositive" (People v Hecker, 15 NY3d 625, 664 [2010]). Upon evaluation of"the totality of all the relevant facts and circumstances" (id. at 664), the record supportsthe trial court's determination to accept the prosecutor's race-neutral explanation for challengingthe prospective juror (id. at 665; see People v Linley, 60 AD3d 696 [2009]; People v Frederick, 48 AD3d 382,383 [2008]; People v Thompson, 45AD3d 876, 877 [2007]; People vWilson, 43 AD3d 1409, 1411 [2007]; People v Robles, 28 AD3d 233 [2006]). Skelos, J.P., Eng, Belenand Hall, JJ., concur.