| People v Roseboro |
| 2015 NY Slip Op 00131 [124 AD3d 1374] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Michael Roseboro, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski,A.J.), rendered June 26, 2012. The judgment convicted defendant, upon a jury verdict, ofburglary in the first degree (two counts), robbery in the first degree (two counts) andsexual abuse in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, two counts of burglary in the first degree (Penal Law§ 140.30 [1], [4]) and two counts of robbery in the first degree(§ 160.15 [2], [4]) arising from his participation in a home invasionrobbery. We reject defendant's contention that Supreme Court erred in refusing tosuppress physical evidence, his statements to the police, and identification testimony asthe fruits of an illegal stop. The record of the suppression hearing supports the court'sdetermination that the police officers' pursuit, stop, and detention of defendant weresupported by a reasonable suspicion that defendant had committed a crime (seePeople v Martinez, 80 NY2d 444, 446 [1992]; People v Bolden, 109 AD3d 1170, 1172 [2013], lvdenied 22 NY3d 1039 [2013]). The officers' questions following the stop,concerning the location of the gun and the presence of sharp objects in defendant'spockets, did not constitute interrogation (see People v Chestnut, 51 NY2d 14,22-23 [1980], cert denied 449 US 1018 [1980]), and thus the court properlyrefused to suppress defendant's responses to those questions. The court also properlyrefused to suppress defendant's statement to a police officer at the jail, which wasspontaneous and not the product of interrogation (see People v Lynes, 49 NY2d286, 294-295 [1980]). The court also properly determined that the showup, conducted intemporal and geographic proximity to the crime, was reasonable under the circumstances(see People v Woodard, 83AD3d 1440, 1441 [2011], lv denied 17 NY3d 803 [2011]; People v Delarosa, 28 AD3d1186, 1186-1187 [2006], lv denied 7 NY3d 811 [2006]). The composition ofthe photo array was not unduly suggestive, inasmuch as it did not "create a substantiallikelihood that . . . defendant would be singled out for identification"(People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833[1990]), nor was the photo array unduly suggestive by reason of the fact that it wasviewed by the same witness who identified defendant in the showup (see People vBrown, 254 AD2d 781, 782 [1998], lv denied 92 NY2d 1029 [1998]).
We reject defendant's further contention that he was denied due process as a result ofthe court's rulings. The court properly denied defendant's challenge for cause to aprospective juror whose parents had been victims of a home invasion robbery, inasmuchas that prospective juror "never expressed any doubt concerning [her] ability to be fairand impartial" (People vOdum, 67 AD3d 1465, 1465 [2009], lv denied 14 NY3d 804 [2010],reconsideration denied 15 NY3d 755 [2010], cert denied 562 US 931 [2010]). The court's Sandoval ruling did not constitute an abuse of discretion(see People v Hawkins, 48AD3d 1279, 1281 [2008], affd 11 NY3d 484 [2008]), nor did the courtabuse its discretion in directing the readback of testimony by two court reporters in theformat of a role play, with one court reporter reading back questions and the secondreading back answers (seegenerally People v Smith, 21 AD3d 1277, 1277-1278 [2005], lv denied7 NY3d 763 [2006]). That format did not create the risk of conveying to the jury thatthe court favored either party (see People v Alcide, 21 NY3d 687, 695 [2013]).
Defendant failed to preserve for review his challenge to the sufficiency of theevidence (see People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97NY2d 678 [2001]). Viewing the evidence in light of the elements of the crimes ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). Defendant also failed to preserve his contention that he was denied a fair trial byprosecutorial misconduct (seePeople v Ross, 118 AD3d 1413, 1416-1417 [2014], lv denied 24 NY3d964 [2014]), and we decline to exercise our power to review that contention as a matterof discretion in the interest of justice (see CPL 470.15 [6] [a]). Finally, thesentence is not unduly harsh or severe. Present—Scudder, P.J., Smith, Carni,Lindley and Sconiers, JJ.