| People v Gilchrist |
| 2012 NY Slip Op 06401 [98 AD3d 1232] |
| September 28, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Victor L.Gilchrist, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.),rendered November 16, 2007. The judgment convicted defendant, upon a jury verdict, ofattempted robbery in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofattempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [2] [b]). Thevictim testified at trial that defendant entered his store, pointed a sawed-off shotgun at him, anddemanded money. The victim and his friend (hereafter, main prosecution witnesses) struggledwith defendant, and defendant eventually fled. Defendant contends that Supreme Court violatedhis constitutional right to present a defense, i.e., that he did not attempt to commit a robbery, butrather was involved in "a drug transaction gone bad," by precluding him from cross-examining apolice witness concerning drug activity at the store and from calling two witnesses (defensewitnesses) to testify concerning drug sales made by the main prosecution witnesses. We rejectthat contention. With respect to the police witness, the court properly determined that thequestion posed on cross-examination, i.e., whether the store had "been the focus of policeattention prior to this date," was beyond the scope of direct examination and was prematurebecause defendant had not presented any evidence that the incident stemmed from a drugtransaction. "It is well settled that '[a]n accused's right to cross-examine witnesses. . . is not absolute,' " and "[t]he scope of cross-examination is within the sounddiscretion of the trial court" (People vHayes, 17 NY3d 46, 53 [2011], cert denied 565 US —, 132 S Ct 844[2011]). In addition, the court advised defendant that he could call the police witness as part ofhis direct case, but defendant chose not to do so.
With respect to the proposed testimony of the defense witnesses, the court did not err inprecluding those witnesses from testifying. " 'Remote acts, disconnected and outside of the crimeitself, cannot be separately proved' " (People v Schulz, 4 NY3d 521, 529 [2005]). Defendant testified thathe went to the store to purchase drugs, but he did not testify that he had purchased drugs from themain prosecution witnesses either on a prior occasion or on the day of this incident. Instead, hetestified that one of the main prosecution witnesses attacked him as soon as [*2]that witness saw him enter the store because defendant hadallegedly robbed that witness's brother. Because defendant did not testify that this incident was a"drug transaction gone bad," any testimony from the defense witnesses that they previously sawthe main prosecution witnesses selling drugs somewhere other than the store was not relevant. Inany event, we agree with the People that, even if the court erred in precluding the defensewitnesses from testifying, such error is harmless. The evidence against defendant isoverwhelming, and there is no reasonable possibility that the error might have contributed to theconviction (see People v Crimmins, 36 NY2d 230, 237 [1975]).
Defendant next contends that the court should have granted his motion to dismiss the jurypanel pursuant to the Sixth Amendment of the United States Constitution on the ground thatthere was systematic exclusion of African-Americans from criminal juries in Monroe County.We reject that contention. "The right to a jury chosen from a fair cross section is . . .protected by the Sixth Amendment guarantee of an impartial jury trial in the context of a petitjury challenge" (People v Guzman, 60 NY2d 403, 409 n 3 [1983], cert denied466 US 951 [1984]). "In order to establish a prima facie violation of the fair-cross-sectionrequirement, the defendant must show (1) that the group alleged to be excluded is a 'distinctive'group in the community; (2) that the representation of this group in venires from which juries areselected is not fair and reasonable in relation to the number of such persons in the community;and (3) that this underrepresentation is due to systematic exclusion of the group in thejury-selection process" (Duren v Missouri, 439 US 357, 364 [1979]; see Guzman,60 NY2d at 410). Here, defendant failed to establish a prima facie violation of the"fair-cross-section requirement" because, with respect to the third prong of the test, he failed tosubmit any facts demonstrating a systematic exclusion of African-Americans from the jury pool(see People v Figgins, 48 AD3d1042, 1043 [2008], lv denied 10 NY3d 840 [2008]; People v Cotton, 38 AD3d 1189,1189 [2007], lv denied 8 NY3d 983 [2007]).
Finally, defendant failed to preserve for our review his contention that the court failed toconduct the proper three-step analysis when he raised a Batson challenge (see People v Scott, 81 AD3d 1470,1471 [2011], lv denied 17 NY3d 801 [2011]; People v Benjamin, 35 AD3d 1185, 1185-1186 [2006], lvdenied 8 NY3d 919 [2007]). In any event, his contention is without merit (see People v Carmack, 34 AD3d1299, 1301 [2006], lv denied 8 NY3d 879 [2007]). Although defendant contendsthat the court failed to determine whether defendant made a prima facie showing ofdiscrimination concerning a prospective juror under the first step of the three-step Batsonanalysis, the issue whether defendant made such a showing became moot once the prosecutorprovided a race-neutral reason for exercising the peremptory challenge in connection with thatprospective juror (see People vHecker, 15 NY3d 625, 652 [2010], cert denied sub nom., Black v New York,563 US —, 131 S Ct 2117 [2011]; People v Scott, 31 AD3d 1165, 1165 [2006], lv denied 7NY3d 851 [2006]). Present—Scudder, P.J., Centra, Fahey and Peradotto, JJ.