| People v Dailey |
| 2011 NY Slip Op 05970 [86 AD3d 579] |
| July 12, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Dwayne Dailey, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Laurie K.Gibbons of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Sullivan, J.),rendered October 7, 2009, convicting him of murder in the second degree, attempted murder inthe second degree (three counts), assault in the first degree (three counts), and criminalpossession of a weapon in the second degree (four counts), upon a jury verdict, and imposingsentence. The appeal brings up for review the denial, after a hearing (McCormack, J.) pursuant toa stipulation in lieu of motions, of the suppression of identification testimony.
Ordered that the judgment is affirmed.
The defendant's contention that the photo arrays from which a number of witnesses selectedhis picture were unduly suggestive is without merit. There were no characteristics of thedefendant's picture that made it stand out in any way from the others in the arrays so as to draw aviewer's attention to it and indicate that the police had "made a particular selection" (People v Curtis, 71 AD3d 1044,1045 [2010]; see People vFerguson, 55 AD3d 926 [2008]; People v Wright, 297 AD2d 391 [2002]).Accordingly, the hearing court properly denied suppression of identification testimony.
Contrary to the defendant's contention, the trial court correctly denied his motions pursuantto CPL 270.10 challenging three jury panels from which the jury was selected. The writtenmotions that the defendant submitted on this issue were patently deficient because they failed toallege facts demonstrating that the claimed underrepresentation of African-Americans on the jurypanel was the result of systematic exclusion (see People v Branch, 244 AD2d 562[1997]). The defendant also contends that the trial court erred in denying his Batsonchallenges (see Batson v Kentucky, 476 US 79 [1986]) with respect to the prosecutor'suse of peremptory challenges to exclude African-Americans and a Hispanic from the jury. Theprosecutor provided race-neutral explanations for excluding each of the prospective jurors atissue (id. at 97). The trial court's determination that these explanations werenonpretextual is entitled to deference on appeal and should not be disturbed where, as here, it issupported by the record (see People v Hernandez, 75 NY2d 350, 356-357 [1990]; People v Waters, 81 AD3d 673[2011]).
The defendant's contention regarding Penal Law § 265.03 (3) is unpreserved for [*2]appellate review (see CPL 470.05 [2]), and we decline toreach it in the exercise of our interest of justice jurisdiction (see CPL 470.15 [6]).
The defendant's contention that the accomplice testimony adduced at trial was insufficientlycorroborated by independent evidence is without merit (see CPL 60.22 [1]; People vBreland, 83 NY2d 286, 292 [1994]; People v Goodson, 35 AD3d 760, 761 [2006]). The CriminalProcedure Law requires only that the corroborative evidence "tend[s] to connect" the defendantwith the commission of the relevant offense (CPL 60.22 [1]). Under that standard, "[a]ll that isnecessary is to connect the defendant with the crime in such a way that the jury may bereasonably satisfied that the accomplice is telling the truth" (People v Daniels, 37 NY2d624, 630 [1975]). That standard was met in this case. Viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that itwas legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover,upon our independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guiltwas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant's remaining contentions are without merit. Angiolillo, J.P., Dickerson, Halland Roman, JJ., concur.