| People v Cuesta |
| 2013 NY Slip Op 01283 [103 AD3d 913] |
| February 27, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Louis Carlo Cuesta, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Weber, J.), rendered November 17, 2010, convicting him of burglary in the seconddegree, upon a jury verdict, and sentencing him to a determinate term of imprisonment of15 years, followed by a term of five years of postrelease supervision. The appeal bringsup for review the denial, after a hearing, of that branch of the defendant's omnibusmotion which was to suppress identification evidence.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by reducing the sentence imposed from a determinate term of imprisonment of 15years, followed by a term of five years of postrelease supervision, to a determinate termof imprisonment of 10 years, followed by a term of five years of postrelease supervision;as so modified, the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunityto view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; Peoplev Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's Batson challenge (see Batson v Kentucky, 476 US79 [1986]) was properly denied, as he failed to make the requisite prima facie showing ofdiscrimination. It is incumbent upon a party making a Batson challenge toarticulate and develop all of the grounds supporting the claim, both factual and legal,during the colloquy in which the objection is raised and discussed (see People vChildress, 81 NY2d 263, 268 [1993]; People v Scott, 70 AD3d 977, 977 [2010]; People v Fryar, 29 AD3d919, 920 [2006]). In support of his Batson application, the defendantobjected to the challenge of a prospective juror of Latin American origin, but contendedonly that no jurors of Latin American origin had been chosen for the jury and that theprosecutor had challenged all prospective jurors of [*2]Latin American origin. In the absence of a recorddemonstrating other circumstances supporting a prima facie showing, the County Courtcorrectly found that the defendant failed to establish a pattern of purposeful exclusionsufficient to raise an inference of racial discrimination (see People v Scott, 70AD3d at 977; People v Fryar, 29 AD3d at 920-921). Since the defendant failed toestablish a prima facie case of discrimination, the court did not err in failing to requirethe prosecutor to provide a race-neutral explanation for his challenges to prospectivejurors of Latin American origin (see People v Childress, 81 NY2d at 268;People v Scott, 70 AD3d at 977; People v Fryar, 29 AD3d at 921).
Contrary to the defendant's contention, the hearing court properly denied that branchof his omnibus motion which was to suppress the showup identification made by awitness near the scene of the crime. "While showup procedures are generally disfavored,they are permissible, even in the absence of exigent circumstances, when they arespatially and temporally proximate to the commission of the crime and not undulysuggestive" (People vBerry, 50 AD3d 1047, 1048 [2008]; see People v Brisco, 99 NY2d 596,597 [2003]; People v Ortiz, 90 NY2d 533, 537 [1997]; People v Gonzalez, 57 AD3d560, 561 [2008]). Here, there was evidence that the showup identification took placeless than one hour after the crime and a few blocks away from the crime scene (seePeople v Gonzalez, 57 AD3d at 561; People v Berry, 50 AD3d at 1048; People v Loo, 14 AD3d716, 716 [2005]; People v Ponce de Leon, 291 AD2d 415, 415 [2002]). ThePeople met their initial burden of establishing the reasonableness of the police conductand the lack of undue suggestiveness in the showup identification through the testimonyof the police officer who transported the witness to the location of the showup and thetestimony of the officer who located the defendant and secured him during the showup(see People v Ortiz, 90 NY2d at 537; People v Gonzalez, 57 AD3d at561). The burden shifted to the defendant to prove that the procedure was undulysuggestive (see People v Ortiz, 90 NY2d at 537; People v Gonzalez, 57AD3d at 561), and the defendant failed to satisfy his burden in this regard. Under thecircumstances of this case, the fact that the defendant was handcuffed while in thepresence of one uniformed officer does not render the showup unduly suggestive (seePeople v Gonzalez, 57 AD3d at 561; People v Berry, 50 AD3d at 1048).
The County Court properly denied the defendant's request to charge criminal trespassin the second degree as a lesser-included offense of burglary in the second degreebecause there is no reasonable view of the evidence that would support a finding that thedefendant committed the trespass without also committing burglary (see People v Faber, 64 AD3d788, 789 [2009]; People vMoore, 60 AD3d 787, 787 [2009]; People v Mendez, 51 AD3d 948, 949 [2008]; People vPuryear, 155 AD2d 562, 563 [1989]).
The sentence imposed was excessive to the extent indicated herein.
The defendant's contention, raised in his pro se supplemental brief, that he wasdeprived of his right to testify before the grand jury, pertains to matter dehors the recordon appeal. The defendant's contention, raised in point two of his pro se supplementalbrief, relating to the presence of an interpreter, has been waived. The defendant'sremaining contentions, including those raised in his pro se supplemental brief, arewithout merit. Skelos, J.P., Balkin, Dickerson and Hinds-Radix, JJ., concur.