| People v Green |
| 2015 NY Slip Op 03421 [127 AD3d 1473] |
| April 23, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vShaun Green, Also Known as SG, Appellant. |
Mark Diamond, Albany, for appellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered April 25, 2013, upon a verdict convicting defendant of the crimes of burglary inthe second degree and robbery in the third degree.
Around midnight on June 14, 2012, defendant and his three accomplices—twomen and one woman—forcibly entered the home of an 86-year-old man(hereinafter the victim) in the City of Cohoes, Albany County. Once inside, defendantand the others repeatedly beat the victim, including kicking him and striking him in thehead and face with a BB gun. While in the residence, the perpetrators breached thevictim's safe and stole approximately $30,000 worth of jewelry and rare coins. Thefollowing day, two of defendant's accomplices were apprehended, both of whomimplicated defendant. Thereafter, defendant was arrested and charged in a five-countindictment with crimes stemming from the home invasion. After a jury trial, defendantwas convicted of two lesser-included crimes, namely, burglary in the second degree androbbery in the third degree and was sentenced to 15 years in prison followed by fiveyears of postrelease supervision for the burglary conviction, and a concurrent prison termof 2 to 7 years for the robbery conviction. Defendant now appeals and we affirm.
To begin, contrary to defendant's contention on appeal, County Court correctly foundthat the police had probable cause to arrest him. "Probable cause 'does not require proofsufficient to warrant a conviction beyond a reasonable doubt but merely informationsufficient to support a reasonable belief that an offense has been . . .committed' by the person arrested" (People v Shulman, 6 NY3d 1, 25 [2005], certdenied 547 US 1043 [2006], quoting People v Bigelow, 66 NY2d 417, 423[1985]; accord People vAugust, 33 AD3d 1046, 1048 [2006], lv denied 8 NY3d 878 [2007])."When determining whether the police had probable cause to arrest, the 'inquiry is not asto defendant's guilt but as to the sufficiency for arrest purposes of the grounds for thearresting officer's belief that [the defendant] was guilty' " (People vShulman, 6 NY3d at 25-26, quoting People v Coffey, 12 NY2d 443, 452[1963]; see CPL 140.10 [1] [b]).
Here, the victim informed the police that, at about midnight on the night in question,a woman he had previously met through one of his tenants rang the doorbell, knocked onhis back door and requested to use his telephone. The victim obliged and allowed thewoman to use the telephone on his back porch. When the woman knocked again, she andthree masked men rushed into the house. The victim described all three as black men ofaverage build and average height. After speaking with the victim's tenant, the policelearned the location of the female accomplice's residence. That apartment was searchedand its numerous occupants—including, but not limited to, the leaseholder andNekaya Rodriguez, who matched the victim's description of the femaleperpetrator—were interviewed. During her interview, Rodriguez admitted to herrole in breaking into the victim's house and identified one of her accomplices by thestreet name of SG. Similarly, the leaseholder informed police that an individual she knewas SG was at her apartment on the night of the incident and that he had gone for a walkwith three others. According to the leaseholder, when SG and the others returned, theyopenly talked about having robbed someone and splitting up the proceeds. AlthoughRodriguez, the leaseholder and one of defendant's accomplices did not know SG's fullname, they were able to identify the building where he lived. The resulting investigationinto that residence uncovered defendant's real name and identity. Shortly thereafter, onJune 15, 2012, defendant's photograph was identified in two separately administeredphoto arrays as depicting SG. Thus, we find no reason to disturb County Court's findingthat defendant's warrantless arrest was supported by probable cause (see People v Gibson, 117AD3d 1317, 1321-1322 [2014], affd 24 NY3d 1125 [2015]; People v Sudler, 75 AD3d901, 902 [2010], lv denied 15 NY3d 956 [2010]; People v Rolle, 72 AD3d1393, 1395 [2010], lv denied 16 NY3d 745 [2011]).
Nor do we find support in the record for defendant's contention that juror misconductwarranted a new trial. Upon allegations of juror misconduct, a "trial court must questioneach allegedly unqualified juror individually in camera in the presence of the attorneysand [the] defendant," with the parties' counsel being permitted to participate in thecolloquy if they so desire (People v Buford, 69 NY2d 290, 299 [1987]; see People v Mejias, 21 NY3d73, 79 [2013]). The inquiry must be "tactful, probing, relevant and reasonable"(People v Leader, 285 AD2d 823, 824 [2001], lv denied 97 NY2d 756[2002]), during which the court must "evaluate the nature of what the juror has seen,heard, or has acquired knowledge of, and assess its importance and its bearing on thecase" (People v Buford, 69 NY2d at 299; see People v Mejias, 21 NY3dat 79). Through the juror's answers and demeanor, the court must "ascertain whether [thejuror's] state of mind will affect [his or] her deliberations" (People v Buford, 69NY2d at 299).
Here, minutes after the jury started deliberations, and after the alternate jurors hadbeen dismissed, a juror self-reported to having obtained outside information pertaining tothe case. In response, County Court appropriately conducted an in-camera inquiry, inwhich counsel for defendant and the People participated. The juror explained that shehad viewed a news clip the previous night on the Internet that concerned the testimony ofa witness for the People. The juror acknowledged that she could set aside the statementsin the news clip, credit only the trial testimony, decide the case based solely on theevidence introduced at trial and follow the court's instructions. She likewise affirmed thatthe news clip would not affect her ability to judge the [*2]facts of the case in a fair and impartial manner. Thus, inlight of the court's appropriate inquiry and, according deference to its credibility findingthat the juror was not prevented from rendering an impartial verdict (see CPL270.20 [1] [b]; 270.35; People v Rodriguez, 71 NY2d 214, 219 [1988];People v Leader, 285 AD2d at 824), County Court did not err in refusing todischarge the juror.
We also reject defendant's additional challenges to the admissibility of the victim's911 call, the postarraignment photo array identification of defendant and the photographsof the victim. Pursuant to CPL 710.30 (2), the People must serve upon a defendant,within 15 days after arraignment, their notice of intention to offer evidence of a pretrialidentification of a defendant (see People v McMullin, 70 NY2d 855, 856 [1987]).Inasmuch as the recording of the victim's call to 911 does not constitute pretrialidentification evidence, it is not subject to the statutory notice requirement (seeCPL 710.30). Therefore, lack of notice in this regard is of no consequence to theadmission of such recording. Continuing, because the photo array identification ofdefendant did not occur until September 13, 2012—nearly three months afterdefendant's arraignment—the People could not have complied with therequirements of CPL 710.30. Without specifically exempting postarraignment pretrialidentifications from the notice requirements of CPL 710.30, we nonetheless find that thePeople's notice in this case—served 26 days after the People learned of theidentification evidence, two days prior to the omnibus hearing, and five months prior tothe scheduled start of trial—was in compliance with the spirit of the statute andmet their continuing obligation to give prompt notice (see CPL 240.60, 710.30;People v Boyer, 6 NY3d427, 431 [2006]; People v O'Doherty, 70 NY2d 479, 488 [1987]; see alsoPeople v Whitaker, 106 AD2d 594, 594 [1984]; People v Boswell, 193AD2d 690, 690 [1993]). Thus, we find no reason to disturb the decision of County Courtto permit admission of this pretrial identification into evidence. Lastly, because thephotographs of the victim depicting his injuries were not offered by the People solely toinflame the jury but, rather, because they were probative and supported a material issue,County Court properly exercised its discretion in allowing them into evidence (see People v Alvarez, 38 AD3d930, 931-932 [2007], lv denied 8 NY3d 981 [2007]; People v Powell, 115 AD3d998, 999-1000 [2014], lv denied 23 NY3d 1024 [2014]).
Defendant's remaining contentions have been considered and have been found to bewithout merit.
Peters, P.J., McCarthy and Rose, JJ., concur. Ordered that the judgment isaffirmed.