| People v Wallace |
| 2014 NY Slip Op 00076 [113 AD3d 413] |
| January 7, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Bobby Wallace, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Ellen S. Friedman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Patricia M. Nunez, J.), rendered June2, 2011, convicting defendant, after a jury trial, of assault in the second degree as a hatecrime, and sentencing him to a term of 3½ years, unanimously affirmed.
The court properly denied defendant's challenge for cause to a prospective juror. Themere making of a challenge for cause, which asserted other grounds, did not preservedefendant's specific claim that the panelist's experience as a crime victim may haveaffected her impartiality (see e.g. People v Deschamps, 256 AD2d 13 [1st Dept1998], lv denied 93 NY2d 923 [1999]), and we decline to review it in the interestof justice. As an alternative holding, we find that when the panelist's responses areviewed as a whole, they provide the requisite assurance of impartiality, which wassufficient to cover any concern about the effect of her background as a crime victim (see People v Shulman, 6 NY3d1, 27 [2005]).
Defendant's dismissal motion based on the general ground of legal insufficiency didnot preserve his present arguments in that regard (see People v Gray, 86 NY2d10, 19 [1995]), and we decline to review them in the interest of justice. As an alternativeholding, we reject them on the merits. We also find that the verdict was not against theweight of the evidence (seePeople v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis fordisturbing the jury's credibility determinations. In light of the unsolicited andinflammatory comments made by defendant before and after the assault, the evidencesupports the inference that defendant intentionally committed the specified offense ofsecond-degree assault at least "in substantial part because of a belief orperception regarding the race, color, national origin, [or] ancestry" of the victim (PenalLaw § 485.05 [1] [b] [emphasis added]).
The court properly denied defendant's suppression motion. Under the circumstances,the police were not required to provide Miranda warnings prior to makinginvestigatory inquiries of defendant as they arrived at the scene of the incident. Areasonable innocent person in defendant's position would not have thought he was incustody (see Stansbury v California, 511 US 318, 325 [1994]; People vYukl, 25 NY2d 585 [1969], cert denied 400 US 851 [1970]; People v Dillhunt, 41 AD3d216, 217 [2007], lv denied 10 NY3d 764 [2008]). In any event, to [*2]the extent there was an investigatory stop, it did notrequire Miranda warnings (see Berkemer v McCarty, 468 US 420,439-440 [1984]; People v Bennett, 70 NY2d 891 [1987]). Furthermore, therewas no interrogation requiring warnings because the officer's inquiries were made toclarify the situation (see People v Johnson, 59 NY2d 1014 [1983]), or werepermissible efforts to locate a weapon in the interest of public safety (see People v Johnson, 46AD3d 276, 277 [1st Dept 2007], lv denied 10 NY3d 865 [2008]).
The court properly directed a court officer to perform the ministerial act of informingthe deliberating jury that the court had denied the jury's oral request to take notes duringsupplemental instructions (seePeople v Jonson, 27 AD3d 289 [1st Dept 2006], lv denied 6 NY3d 895[2006]). Concur—Sweeny, J.P., Acosta, Saxe and Moskowitz, JJ.