| People v Vincenty |
| 2016 NY Slip Op 02587 [138 AD3d 428] |
| April 5, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Nicholas Vincenty, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York and PetrilloKlein & Boxer LLP, New York (Mirah E. Curzer of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (John T. Hughes of counsel), forrespondent.
Judgment, Supreme Court, New York County (Rena K. Uviller, J., at hearing; JuanMerchan, J., at jury trial and sentencing), rendered May 30, 2012, convicting defendantof robbery in the second degree, and sentencing him, as a second violent felony offender,to a term of 11 years, unanimously affirmed.
To the extent the existing record permits review, we find that defendant receivedeffective assistance under the state and federal standards (see People vBenevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466US 668 [1984]). Defendant asserts that his counsel's admission of ethnic bias inattempting to exercise a peremptory strike resulted in the seating of a potentiallyunfavorable juror and the subsequent grant of the People's reverse-Batsonapplication allowing for the seating of a second potentially unfavorable juror. Initially,we note that in the absence of a showing of ineffective assistance, a defendant is notaggrieved by his or her own attorney's discriminatory use of peremptory challenges(People v Garcia, 298 AD2d 107 [1st Dept 2002], lv denied 99 NY2d 558[2002]). Although counsel should have avoided ethnic bias, defendant has not shownthat counsel's actions resulted in the seating of any unfair or otherwise unqualified jurors(see Morales v Greiner, 273 F Supp 2d 236, 253 [ED NY 2003]). Defendant'sclaim that a different course of action in jury selection might have resulted in a jury morefavorable to the defense is speculative, and would in any event not be sufficient to satisfythe prejudice requirement under the state and federal standards.
Defendant did not preserve his challenge to the procedures by which the courthandled the reverse-Batson application (see e.g. People v Meyes, 112 AD3d 516, 516-517 [1st Dept2013], lv denied 23 NY3d 965 [2014]), and we decline to review it in the interestof justice. As an alternative holding, we find that the court fairly evaluated the People'sclaim that defense counsel had again exercised a peremptory challenge for the sameethnically-biased reason as in the first instance. The court's finding of pretext, which issupported by the record and based primarily on its assessment of counsel's credibility, isentitled to great deference (see id.).
The motion court properly denied defendant's motion to suppress showupidentifications. The prompt showup, conducted near the scene of the crime and as part ofan unbroken chain of fast-paced events, was not unduly suggestive, and the manner inwhich the showup was [*2]conducted was justified by theexigencies of the case (seePeople v Williams, 87 AD3d 938 [1st Dept 2011], lv denied 18 NY3d863 [2011]). While the better practice, when feasible, is not to conduct a showup beforemultiple witnesses (see People v Love, 57 NY2d 1023, 1024 [1982]), here theofficer transporting two witnesses unexpectedly came upon a scene where privatesecurity guards were holding defendant, and there was no real opportunity for the officerto arrange for each witness to individually view defendant. In any event, nothing in therecord suggests that the witnesses influenced each other's identifications (see People v Wilburn, 40AD3d 508 [1st Dept 2007], lv denied 9 NY3d 883 [2007]).
Defendant's remaining suppression arguments, and his claims relating to events thatoccurred during jury deliberations, are unpreserved and we decline to review them in theinterest of justice. As an alternative holding, we reject them on the merits.
We perceive no basis for reducing the sentence. Concur—Tom, J.P.,Friedman, Richter, Gische and Gesmer, JJ.