| People v Ramos |
| 2015 NY Slip Op 00049 [124 AD3d 1286] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vAmilcar Ramos, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of counsel), fordefendant-appellant.
Amilcar Ramos, defendant-appellant pro se.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang,J.), rendered July 26, 2012. The judgment convicted defendant, upon a jury verdict, ofburglary in the first degree (two counts) and robbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial ofrobbery in the first degree (Penal Law § 160.15 [4]) and two counts ofburglary in the first degree (§ 140.30 [2], [4]), defendant contends thatSupreme Court did not follow the proper Batson procedures in denying hisBatson challenge and that he was deprived of a fair trial by the prosecutor'sallegedly race-based peremptory challenges to three African-American prospective jurorsand one Hispanic prospective juror. We reject defendant's contention with respect to theBatson procedures. Although the court initially denied the Batsonchallenge before defense counsel had an opportunity to argue that the prosecutor's statedreasons were pretextual, defense counsel nevertheless placed on the record why hebelieved the reasons were pretextual, whereupon the court again denied the motion. Inany event, the court, by initially rejecting the challenge prematurely, can be said to haveimplicitly determined that the prosecutor's proffered race-neutral reasons were notpretextual (see People vCarmack, 34 AD3d 1299, 1301 [2006], lv denied 8 NY3d 879 [2007]).We likewise reject defendant's contention that he was denied a fair trial based on theprosecutor's use of peremptory challenges. In response to defense counsel'sBatson challenge, the prosecutor stated that two of the African-Americanprospective jurors expressed dissatisfaction with the manner in which the policeinvestigated crimes committed against them, while the third answered "yes and no" whenasked whether he was satisfied with the police handling of a crime reported by hisgirlfriend. With respect to the Hispanic prospective juror, the prosecutor stated that heindicated that he was inclined to "speculate" rather than base his decision on the factspresented. We note that the prosecutor also struck a Caucasian prospective juror whostated that a relative did not "get a fair shake" by the prosecution in a prior case, and weconclude that the court did not abuse its discretion in determining that the prosecutor'sexplanations for his peremptory challenges were not pretextual (see People v Farrare, 118AD3d 1477, 1477-1478 [2014], lv denied 23 NY3d 1061 [2014]).
Viewing the evidence in the light most favorable to the People (see People vWilliams, 84 NY2d 925, 926 [1994]), we reject defendant's further contention thatthe evidence is legally insufficient to support the conviction (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Two of the victims identified defendant at trialas one of the two perpetrators and, although defendant challenged the credibility andreliability of those witnesses, we must assume the truth of their testimony in the contextof a challenge to the sufficiency of the evidence. Viewing the evidence in light of theelements of the crimes as charged to the jury (see People v Danielson, 9 NY3d[*2]342, 349 [2007]), we likewise conclude that theverdict is not against the weight of the evidence (see Bleakley, 69 NY2d at 495).We note that "resolution of issues of credibility, as well as the weight to be accorded tothe evidence presented, are primarily questions to be determined by the jury" (People v Witherspoon, 66AD3d 1456, 1457 [2009], lv denied 13 NY3d 942 [2010] [internal quotationmarks omitted]), and we perceive no reason to disturb the jury's resolution of those issuesin this case.
We also note that defendant was stopped by the police while driving a vehiclematching the description of the getaway vehicle, i.e, a white Cadillac CTS with largechrome rims and a dark-colored roof. In addition, three calls were made to defendant'scell phone from the cell phone stolen from one of the victims. Those calls were madebetween 12:57 p.m. and 1:44 p.m. on the day in question, which is when the chargedcrimes were taking place, and the People presented evidence that defendant's cell phonewas "pinging" a cell phone tower close to the crime scene at or about that same time.Under the circumstances, even assuming, arguendo, that a different verdict would nothave been unreasonable, we conclude that it cannot be said that the jury failed to give theevidence the weight it should be accorded (see generally Bleakley, 69 NY2d at495; People v Gay, 105AD3d 1427, 1427-1428 [2013]).
We agree with defendant that the court erred in allowing one of the victims to offervoice identification testimony at trial. Prior to trial, the prosecutor had the victim listen torecordings of telephone calls allegedly made by defendant from jail, and the victimidentified the voice of the person making the calls as belonging to defendant. The victimoffered similar testimony at trial over defendant's objection. Because the People failed toprovide defendant with notice of the pretrial voice identification procedure as required byCPL 710.30 (1) (see generally People v Muneton, 302 AD2d 246, 246 [2003],lv denied 100 NY2d 541 [2003]), the voice identification testimony wasadmissible at trial only if the identification was merely confirmatory as a matter of law(see People v Tas, 51 NY2d 915, 916 [1980]; People v Brito, 11 AD3d 933, 934 [2004], appealdismissed 5 NY3d 825 [2005]). Contrary to the People's contention, the victim'sidentification of defendant's voice was not merely confirmatory inasmuch as the victimacknowledged that, although he had heard defendant speak a number of times in theneighborhood, he and defendant had never actually spoken to each other. We thusconclude that the People did not establish as a matter of law that the victim was sofamiliar with defendant's voice that "the identification at issue could not be the productof undue suggestiveness" (People v Boyer, 6 NY3d 427, 431 [2006]; see People vRodriguez, 79 NY2d 445, 449-450 [1992]).
We nevertheless conclude that the error is harmless. Defendant did not make anyincriminating statements in the jail phone call, and, in any event, another trial witness, adeputy sheriff, identified without objection defendant's voice from the same recordingsand thus the victim's improper voice identification testimony was cumulative. Weconclude that there is "no reasonable possibility that the error might have contributed todefendant's conviction" (People v Crimmins, 36 NY2d 230, 237 [1975]; see People v Boop, 118 AD3d1273, 1273 [2014]).
We have reviewed the remaining contentions in defendant's main and pro sesupplemental briefs and conclude that they do not require modification or reversal of thejudgment. Present—Smith, J.P., Centra, Fahey, Lindley and Whalen, JJ.