| People v Brown |
| 2015 NY Slip Op 04860 [129 AD3d 854] |
| June 10, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Andre S. Brown, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Alexis A. Ascher of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Nicoletta J. Caferri, Nancy Fitzpatrick Talcott, and Johnnette Traill of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Hollie, J.), rendered August 9, 2010, convicting him of robbery in the first degree,robbery in the second degree (two counts), criminal possession of stolen property in thefifth degree, and criminal possession of a weapon in the fourth degree, upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after ahearing (Kron, J.), of those branches of the defendant's omnibus motion which were tosuppress his statements to law enforcement officials and identification evidence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
On appeal, the defendant contends that police officers did not have reasonablesuspicion to justify their initial stop and detention of him, and that the Supreme Courtshould have suppressed his statements to law enforcement officials and identificationevidence as fruits of that unlawful stop. Contrary to the defendant's contentions, therecord supports the Supreme Court's determination that his stop and detention were basedon reasonable suspicion (seePeople v Moore, 6 NY3d 496, 498-499 [2006]; People v Hollman, 79NY2d 181, 184-185 [1992]; People v De Bour, 40 NY2d 210, 223 [1976]).Police officers received information regarding a robbery committed by two individuals.The defendant partially matched the general description of one of the perpetratorsprovided by the complainant, was seen walking away from railroad tracks where a policesergeant and other police officers had just been chasing two suspects, and was withinseveral blocks of the scene of the subject robbery approximately 10 minutes after thecrime had taken place. Accordingly, there was reasonable suspicion to stop and detainthe defendant for a few minutes until a sergeant arrived from around the corner andidentified the defendant as one of the suspects he had been pursuing on the railroadtracks (see People vLemmo, 18 AD3d 885, 885-886 [2005]; People v Harris, 245 AD2d 302[1997]). Since the officers' actions were supported by reasonable suspicion, the SupremeCourt properly denied those branches of the defendant's omnibus motion, made on theground that his initial stop and detention were unlawful, which were to suppress thestatements he spontaneously made to the detaining officer prior to the arrival of thesergeant (see People v Jackson, 249 AD2d 327, 328 [1998]), and a subsequentshowup identification by the complainant (see People v McCoy, 30 AD3d 441, 442[2006]).
[*2] In the course of jury selection, thedefendant exercised several peremptory challenges to prospective jurors, one of whichwas contested by the People on the ground that the defendant was attempting to excludewhite females from the jury, thus raising what is commonly known as areverse-Batson challenge (see Batson v Kentucky, 476 US 79 [1986]; People v Carrington, 105AD3d 970, 970 [2013]; see generally People v Kern, 75 NY2d 638, 649-650[1990]). The Supreme Court properly sustained the People's objection in this regard.Contrary to the defendant's contentions, the record supports the Supreme Court'sdetermination that defense counsel's proffered reasons for challenging the subjectprospective juror were pretextual. "Although not entirely insulated from review, thedetermination of whether an explanation is merely pretextual is generally a matter for theTrial Judge, whose findings are entitled to great deference" (People v Jupiter, 210AD2d 431, 434 [1994]; see People v Hernandez, 75 NY2d 350, 356 [1990],affd 500 US 352 [1991]; People v Shaheed, 70 AD3d 980 [2010]; People v Bowman, 58 AD3d747 [2009]; People v Wilson, 278 AD2d 519 [2000]). This is particularlytrue where, as here, the reason for challenging a prospective juror is based upon certainnonverbal responses and reactions of the prospective juror, which the trial court had theopportunity to observe (seePeople v Martinez, 58 AD3d 754, 755 [2009]; People v Wilson, 278AD2d at 519; People v Rivera, 220 AD2d 782, 783 [1995]). However,"[a]lthough a proffered race-[or gender-] neutral explanation for the exclusion of apotential juror need not rise to the level required to challenge a venireperson for 'cause,'. . . the burden cannot be met by merely claiming good faith and denyingdiscriminatory purpose" (People v Peart, 197 AD2d 599, 600 [1993] [citationomitted]; see People v Hernandez, 75 NY2d at 351; People v Dixon, 202AD2d 12, 17 [1994]). Here, the reason proffered by defense counsel for exercising theperemptory challenge against the subject prospective juror was that, during voir dire,"[s]he had her head down the entire time and was kind of looking down through thisprocess," from which counsel concluded that she was "going to be a wall flower[ ] andjust kind[ ] of go with the flow." This explanation was purely intuitive and based oncounsel's subjective impression rather than upon facts adduced at voir dire (seePeople v Grier, 261 AD2d 555, 556 [1999]; People v Hewitt, 258 AD2d 597,598 [1999]). To accept the defendant's bare assertion, unsupported by any factual basis,that the prospective juror was neutral and would not be a strong juror for the defensewould be, in effect, to accept no reason at all (see People v Shaheed, 70 AD3d at981; People v Peart, 197 AD2d at 600). There is nothing in the record to supportdefense counsel's purported conclusion that this prospective juror—a 68-year-oldsales associate who had previously sat on a jury, did not know anyone in lawenforcement, and, unlike many of the prospective jurors, had not been the victim of acrime—would be a weak juror for the defense.
The defendant contends that he was deprived of due process by the Supreme Court'srefusal to grant him a mistrial when a police witness related the defendant's statementthat he did not want to "go back to jail." We agree that the court improvidently exercisedits discretion in admitting the statement, unredacted. Where, as here, the defendant "hasnot taken the stand or placed his character in issue, the general rule is that the prosecutionis prohibited from introducing evidence of his past criminal record" (People vBlanchard, 83 AD2d 905, 905 [1981]; see People v Mullin, 41 NY2d 475[1977]; People v Robbins, 38 NY2d 913 [1976]; Matter of Devon B., 1 AD3d432, 433 [2003]). The word "back," which could easily have been redacted withoutmaterially changing the meaning of the statement, revealed an unspecified past criminalrecord, causing prejudice without serving any probative purpose (see People vCrandall, 67 NY2d 111, 117 [1986]; People v Blanchard, 83 AD2d 905, 906[1981]). Nevertheless, although the admission of the unredacted statement was improper,under the circumstances of this case (cf. People v Mullin, 41 NY2d at 480), theprejudice to the defendant was not so great as to have warranted a mistrial, or to requirereversal on appeal (see People v Crimmins, 36 NY2d 230, 241-242 [1975]).
However, a new trial is required based on the Supreme Court's failure to comply withCPL 310.30, in accordance with the procedure set forth in People v O'Rama (78NY2d 270 [1991]). Here, in the second of six jury notes, the jury advised: "We have onejuror that feels she cannot make a decision based on the evidence presented to us."Instead of marking the note as an exhibit and reading it aloud on the record to the partiesprior to calling in the jury, the court read the note on the record for the first time in frontof the jurors, and then immediately responded by issuing a truncated Allen charge(see Allen v United States, 164 US 492 [1896]), encouraging continuingdeliberations. This jury note "called for a substantive response that required carefulcrafting after hearing argument from both the People and the defense" (People v Lockley, 84 AD3d836, 839 [2011]; see People v Kisoon, 8 [*3]NY3d 129, 134 [2007]). Yet there is no indication that thecourt provided notice to defense counsel and the prosecutor of the contents of the note or"a full opportunity to suggest appropriate responses" (People v Nealon, 116 AD3d 886, 887 [2014]; see People v Surpris, 83 AD3d742, 744 [2011]). "[B]y depriving the defendant of meaningful notice of thecommunication [and] a meaningful opportunity to participate in the formulation of thecourt's response," the court failed to fulfill its "core responsibility" under CPL 310.30,thereby committing an error affecting "the mode of the proceedings" (People vLockley, 84 AD3d at 837; see People v Silva, 24 NY3d 294, 299-300 [2014];People v Kisoon, 8 NY3d at 134-135; People v O'Rama, 78 NY2d at279-280; People v Surpris, 83 AD3d at 744). Such an error "need not bepreserved, and prejudice manifestly results" (People v Lockley, 84 AD3d at 837;see People v O'Rama, 78 NY2d at 279-280). Thus, despite defense counsel'sfailure to object to the Supreme Court's handling of the jury's notes, reversal is required(see People v Silva, 24NY3d 294 [2014]; People v Lockley, 84 AD3d at 839).
The People are correct that a timely objection to an alleged O'Rama error maybe required where defense counsel had "knowledge of the substance of the court'sintended response" (People v Starling, 85 NY2d 509, 516 [1995]; see People v Ramirez, 15NY3d 824, 825 [2010]). However, while the record shows that a discussion washeld off the record at the sidebar immediately before the Supreme Court directed thecourt officer to "bring them in," it is not evident from the record that defense counsel hadknowledge of the contents of the note or how the court would respond to the note.Rather, as far as the record reveals, defense counsel first learned of the court's response atthe same time the jury heard it (see People v Sydoriak, 120 AD3d 840, 841 [2014]). Wherea trial transcript does not show compliance with O'Rama's procedure as requiredby law, we cannot assume that the omission was remedied at an off-the-recordconference that the transcript does not refer to (see People v Walston, 23 NY3d 986, 990 [2014]; People v Tabb, 13 NY3d852, 852 [2009]; People vMcGhee, 103 AD3d 667, 668 [2013]).
In light of our determination, we need not reach the defendant's remainingcontention. Rivera, J.P., Hall, Austin and Cohen, JJ., concur.