| People v Garris |
| 2012 NY Slip Op 07125 [99 AD3d 1018] |
| October 24, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JamelGarris, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C.Abbot, and Danielle S. Fenn of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Blumenfeld, J.), rendered June 7, 2010, convicting him of robbery in the second degree andcriminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The complainant testified that he was delivering a pizza on February 8, 2009, at about 10:00p.m., to a house in Far Rockaway. The complainant observed a man standing outside that house,speaking on a cell phone. The man waved to the complainant, in response to which thecomplainant parked his car and got out to deliver the pizza. As the complainant handed the pizzaand some sodas to the man, another man came up behind the complainant, put a gun to his neck,and demanded all of his money. The complainant handed over his wallet and some money in hispocket, totaling a little over $400. The police arrested the defendant several days later, findinghim in a house along with a BB gun that the complainant later identified as the gun used in therobbery, and a pizza box bearing the telephone number used to order the pizza that thecomplainant was delivering when the robbery occurred.
The complainant identified the defendant in a lineup several days later as the man who heldthe gun to his neck. At trial, the prosecutor asked the complainant how he recognized thedefendant, given that the assailant had part of his face covered during the robbery. Thecomplainant responded that he recognized the defendant from his eyes and his dark complexion.
The jury convicted the defendant of robbery in the second degree and criminal possession ofa weapon in the third degree. The defendant appeals.
Contrary to the defendant's contention, he was not denied the effective assistance of counselbecause his trial attorney did not move to reopen a Wade hearing (see United States vWade, 388 US 218 [1967]) and seek to suppress the lineup identification upon hearing thecomplainant's testimony that he identified the defendant in part because of his dark complexion."A lawyer is not ineffective for failing to make a motion that is unlikely to succeed" (People v Ennis, 41 AD3d 271, 274[2007], affd 11 NY3d 403 [2008], cert denied 556 US 1240 [2009]). "Skin tone isonly one of the factors to be considered in deciding 'reasonable similarity' and differences in skintone alone will not render a lineup unduly suggestive" (People v Pointer, 253 AD2d 500,500 [1998] [citations omitted]).[*2]
In fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the factfinder's opportunity to view thewitnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383,410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490,495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was notagainst the weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The defendant further contends that the Supreme Court erroneously failed to require thePeople to provide race-neutral explanations for their peremptory challenges to certain jurorsduring the first round of voir dire, after the court denied a challenge to the prosecutor's use ofperemptory challenges in the second round (see Batson v Kentucky, 476 US 79 [1986]).This contention is unpreserved for appellate review. In the first instance, defense counsel neverrequested explanations for any of the five peremptory challenges exercised by the prosecutionduring the first round (see CPL 470.05 [2]; People v Lugo, 69 AD3d 654 [2010]), including those challengesreferable to two of the first-round panelists that defense counsel later alleged were based on race.Second, defense counsel also made Batson objections to three peremptory challengesexercised by the prosecution during the second round of voir dire, and the prosecutor respondedonly to one of those objections, without a further request by defense counsel to providerace-neutral explanations for the other second-round challenges. Even if the defendant had madetimely Batson objections to all five of the prosecutor's peremptory challenges, once theprosecutor addressed one of them, it was incumbent on the defendant to call the court's attentionto fact that the prosecutor failed to provide race-neutral explanations with respect to theremaining four challenges (see People vOrr, 73 AD3d 596 [2010]). The defendant's failure to do so rendered his objectionsunpreserved for appellate review. Moreover, with respect to the one panelist for whom theprosecutor nonetheless provided a race-neutral explanation for the peremptory challenge, thecourt properly accepted the prosecutor's explanation and denied the defendant's Batsonobjection (see generally People vHall, 53 AD3d 552, 554 [2008]). Eng, P.J., Rivera, Hall and Sgroi, JJ., concur.