| People v Ward |
| 2015 NY Slip Op 04928 [129 AD3d 492] |
| June 11, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Tyrell Ward, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Gina Mignola of counsel), forrespondent.
Judgment, Supreme Court, New York County (Thomas Farber, J.), renderedFebruary 28, 2012, as amended, March 6, 2012, convicting defendant, after a jury trial,of attempted robbery in the first degree (two counts) and assault in the second degree,and sentencing him, as a second violent felony offender, to an aggregate term of 15years, unanimously affirmed.
The court properly denied defendant's motion to suppress his postlineup statement tothe police. Before the lineup, defendant waived his Miranda rights and madestatements. As the police were setting up the lineup, defendant asked for a lawyer, but heexpressly placed this request in the context of his complaint about a perceived unfairnessin the lineup. After the police corrected the defect in the lineup to defendant'ssatisfaction, he made no further mention of a lawyer. The record supports the hearingcourt's meticulous findings after a full hearing, that defendant never made anunequivocal request for counsel in the distinct context of interrogation (see People v Ramirez, 59AD3d 206 [1st Dept 2009], lv denied 12 NY3d 858 [2009]). There is noevidence to support defendant's claim that when he mentioned a lawyer at the lineup, hemeant he had come to the realization that he needed a lawyer for interrogation purposesas well. Nor was there any need for the police to repeat previously administeredMiranda warnings before resuming questioning. The subsequent interview camewithin a reasonable time after the warnings had last been given (see People v Holmes 82 AD3d441 [1st Dept 2011], lv denied 16 NY3d 895 [2011]), and, for the reasonspreviously stated, the questioning cannot be viewed as having followed a request forcounsel.
The court also properly declined to suppress any statements as fruits of an allegedlyunlawful home arrest. The record supports the court's finding that defendant's mother'sconsent to the police entry into the apartment she shared with defendant was voluntaryunder the totality of circumstances, including her cooperative attitude and the absence ofcoercive police conduct (see People v Gonzalez, 39 NY2d 122, 128-130[1976]).
The verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibilitydeterminations, including its acceptance of the accounts of defendant's cooperatingaccomplices.
[*2] The court properlydischarged a sworn juror who lived in the neighborhood where the crime had occurredand where defendant and his accomplices lived, after the juror stated that his fear of thedrug dealers in his neighborhood would prevent him from rendering an impartial verdict.The juror's fear provided grounds for the court to dismiss him as "grossly unqualified toserve" pursuant to CPL 270.35 (1), even if the court did not cite the statutory phrasing,because it was clear that the juror could not remain impartial. Additionally, since thejuror had not mentioned that he feared for his safety when questioned by the court andthe parties before being sworn, he was properly discharged for cause, on a newlydiscovered ground, pursuant to CPL 270.15 (4). We have considered and rejecteddefendant's remaining arguments concerning the discharge of the juror.
The court properly exercised its discretion in giving an adverse inference charge, butdenying preclusion of related evidence, as an appropriate sanction for the loss by thepolice of defendant's phone, recovered by the police from one of his accomplices (see People v Medina, 9 AD3d251, 252 [1st Dept 2004], lv denied 3 NY3d 741 [2004]). The loss of thephone was unintentional, and the adverse inference charge was sufficient to alleviate theminimal prejudice to defendant. Concur—Tom, J.P., Mazzarelli, Sweeny andGische, JJ.