| People v Green |
| 2016 NY Slip Op 05674 [141 AD3d 1036] |
| July 28, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Clarence Green, Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Garry, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered July22, 2014 in Albany County, upon a verdict convicting defendant of the crimes of robberyin the third degree and grand larceny in the fourth degree.
Defendant was indicted for robbery in the third degree and grand larceny in thefourth degree stemming from an incident in which he was alleged to have forcibly stolena deposit bag containing $9,000 from a liquor store manager (hereinafter the victim) inthe City of Albany. Following a jury trial, defendant was found guilty of both counts ofthe indictment and was thereafter sentenced to an aggregate prison term of3
Defendant's contention that the evidence was legally insufficient to establish the useof force element of his conviction for robbery in the third degree is unpreserved for ourreview as defense counsel's motion for a trial order of dismissal was not "specificallydirected at the alleged error" (People v Gray, 86 NY2d 10, 19 [1995] [internalquotation marks and citation omitted]; see People v Stevens, 87 AD3d 754, 754 n [2011], lvdenied 18 NY3d 861 [2011]). However, as defendant was not required to preservehis further contention that the verdict was against the weight of the evidence, under thatreview, we evaluate the evidence to ensure that each of the elements of the chargedoffenses were established (seePeople v Rojas, 121 AD3d 1427, 1428 [2014], lv denied 24 NY3d 1221[2015]; People v Gaudiosi,110 AD3d 1347, 1348 [2013], lv denied 22 NY3d 1040 [2013]).
[*2]At trial, the People elicited testimony from thevictim, among other witnesses. The victim testified that he was on his way to make abank deposit while in possession of a plastic bag containing $9,000 when defendantpulled the bag off his wrist, "ripp[ing] the handles off [his] hand forcefully," and fled.The victim then chased after defendant and ultimately cornered him in a nearby parkinglot, blocking his only route of escape. Defendant and the victim then "ran into eachother" as the victim attempted to dislodge the bag from defendant's grasp and defendantattempted to push the victim out of the way. Ultimately, the victim was able to recoverthe bag and defendant fled the parking lot. Several other witnesses observed the victimchasing after defendant while calling for help. One of these witnesses testified that hehad been working in an office building next to the parking lot and pursued defendantafter hearing the victim calling for help. After a short chase, this witness tackled andrestrained defendant until police arrived. Another witness who had observed the pursuitidentified defendant as the individual that had fled and testified that he assisted inrestraining defendant. The arresting police officer testified that he arrived on the scene tofind defendant detained by two individuals and subsequently took defendant intocustody. Contrary to defendant's contention, the evidence established that defendant"forcibly [stole] property" (Penal Law § 160.05). The victim's testimonythat defendant forcefully ripped the bag from his hands, causing the handles to rip, andpushed the victim away as the victim sought to retrieve the bag satisfied the forciblestealing element of the crime (see Penal Law § 160.00; People v Barksdale, 50 AD3d400, 401 [2008], lv denied 10 NY3d 932 [2008]; People v Rumrill, 40 AD3d1273, 1275 [2007], lv denied 9 NY3d 926 [2007]; People v Jones, 4 AD3d622, 623-624 [2004], lv denied 2 NY3d 801 [2004]). Upon review of therecord, we are satisfied that the verdict was in accord with the weight of theevidence.
Defendant's contention that Supreme Court erred in refusing to suppress certainstatements that he made to the police while in custody because he did not knowingly andintelligently waive his Miranda rights is without merit. The testimony and abooking room videotape admitted into evidence at the Huntley hearingestablished that a detective read defendant his Miranda rights from a preprintedcard prior to initiating any questioning. When asked if he understood his rights,defendant answered in the affirmative and, immediately thereafter, provided detailedresponses to questions regarding his involvement in the incident. Accordingly,defendant's unambiguous acknowledgment that he understood his rights and subsequentparticipation in answering the detectives' questions constituted an implicit waiver of hisMiranda rights (see People v Sirno, 76 NY2d 967, 968 [1990]; People v Fiorino, 130 AD3d1376, 1379-1380 [2015], lv denied 26 NY3d 1087 [2015]; People v Jaeger, 96 AD3d1172, 1173 [2012], lv denied 19 NY3d 997 [2012]), and Supreme Court didnot err in denying defendant's motion to suppress his statements.
Defendant further contends that Supreme Court erred in its response to defendant'sBatson challenge to the People's use of a peremptory challenge during juryselection. When a Batson challenge is raised in response to an alleged use of aperemptory challenge with discriminatory intent, the court must utilize a three-stepframework to resolve the challenge. "At step one, 'the moving party bears the burden ofestablishing a prima facie case of discrimination in the exercise of peremptorychallenges' " (People vHecker, 15 NY3d 625, 634 [2010], quoting People v Smocum, 99 NY2d418, 420 [2003]). If the court finds that the moving party has demonstrated a prima faciecase, then the burden shifts "to the nonmoving party to offer a facially neutralexplanation for each suspect challenge" to overcome the inference of discrimination(People v Hecker, 15 NY3d at 634; see People v Smocum, 99 NY2d at422; People v Jones, 136AD3d 1153, 1158 [2016], lv denied 27 NY3d 1000 [2016]). If thenonmoving party offers such an explanation, "the burden shifts back to the moving partyto prove purposeful discrimination and the trial court must determine whether theproffered reasons are pretextual" (People v [*3]Hecker, 15 NY3d at 634-635 [internal quotation marksand citations omitted]; accord People v Jones, 136 AD3d at 1158).
Here, defendant lodged a Batson objection after the People used peremptorychallenges to strike the only two black prospective jurors in one jury panel, identified asjuror Nos. 10 and 11, and noted that the People had also struck another potential blackjuror from a prior panel.[FN1] In ruling on the challenge, SupremeCourt observed that a black juror in a prior panel had been seated and found that, "[f]rom[the court's] own basis . . . I can think of many reasons race neutral I wouldexcuse [prospective juror No. 10]." The court required the People to set forth arace-neutral explanation with respect to prospective juror No. 11. The prosecutorexplained that he did not want a football player on his jury and that prospective juror No.11 had been "very glib in his responses."[FN2] In response, defendant stated that theexplanation was pretextual; the court disagreed, finding the prosecutor's explanationacceptable on the ground that the voir dire exchange with prospective juror No. 11"almost create[d] an animosity between [the prosecutor] and the juror."
With respect to prospective juror No. 10, we reject defendant's contention thatSupreme Court improperly condensed the first two steps of its Batson inquiry;rather, defendant failed to meet his prima facie burden at the first step of the inquiry and,thus, the second step was not reached. The court's statement that there were possiblerace-neutral reasons for the peremptory challenge of prospective juror No. 10 did notrender moot the issue of whether defendant had established a prima facie case. The courtwas permitted to consider "the totality of the relevant facts" bearing on whetherdefendant had established an inference of discriminatory intent (People v Hecker,15 NY3d at 651 [internal quotation marks and citation omitted]; see Batson vKentucky, 476 US 79, 96-97 [1986]). The court did not find, nor did the Peoplevolunteer, any specific race-neutral justification for the peremptory challenge that wouldhave then required the court to proceed to the next step of the analysis (see People vSmocum, 99 NY2d at 423; People v Payne, 88 NY2d 172, 182 [1996]).Moreover, in support of his Batson objection, defense counsel merely argued thatthree black prospective jurors had been challenged, and now argues that this establishedan inference of discriminatory motive. Although this first step is "not intended to beonerous[,] . . . purely numerical or statistical arguments are rarelyconclusive in the absence of other facts or circumstances to give rise to an inference ofdiscrimination" (People v Hecker, 15 NY3d at 651 [internal quotation marks andcitation omitted]). As defendant did not raise any other facts supporting an inference ofdiscrimination (compare Peoplev Hurdle, 99 AD3d 943, 944 [2012]), we find no error in the determination thatdefendant failed to meet his prima facie burden (see People v Jenkins, 84 NY2d1001, 1003 [1994]; People vMorris, 140 AD3d 1472 ,1475-1476 [2016]; People v Fryar, 29 AD3d 919, 920-921 [2006], lvdenied 7 NY3d 812 [2006]; People v Vidal, 212 AD2d 553, 554 [1995],appeal denied 85 [*4]NY2d 981 [1995]).
As to prospective juror No. 11, defendant asserts that Supreme Court erred indetermining that the People proffered a nonpretextual justification for the challenge. Wedisagree. The People's justification that prospective juror No. 11 was "glib" in hisresponses provided "a facially neutral explanation for [the] suspect challenge"(People v Hecker, 15 NY3d at 634) premised on "a 'rationale [with] some basis inaccepted trial strategy' " (id. at 658, quoting Miller-El v Cockrell,537 US 322, 339 [2003]). In response to this explanation, defense counsel merely stated,in a conclusory fashion, that the justification was pretextual. According appropriatedeference to the court's determination (see People v Hecker, 15 NY3d at656-657; People v Knowles,79 AD3d 16, 21 [2010], lv denied 16 NY3d 896 [2011]), we find no error inits finding that the proffered justification was valid and nonpretextual (see People v Wells, 7 NY3d51, 58 [2006]; People vEnglish, 119 AD3d 706, 706 [2014], lv denied 24 NY3d 1043 [2014];People v Lee, 80 AD3d877, 879-880 [2011], lv denied 16 NY3d 833 [2011]; People v Morgan, 24 AD3d950, 952 [2005], lv denied 6 NY3d 815 [2006]).
Next, defendant argues that Supreme Court erroneously denied his requests to submita petit larceny charge as a lesser included offense for the jury's consideration. Adefendant is entitled to a lesser included offense charge when he or she establishes "thatit is impossible to commit the greater crime without necessarily committing the lesser andthere [is] a reasonable view of the evidence which would support a finding that thedefendant committed only the lesser offense" (People v Barney, 99 NY2d 367,371 [2003]; see People vBaker, 123 AD3d 1378, 1380 [2014]; People v Rumrill, 40 AD3d 1273, 1275 [2007], lvdenied 9 NY3d 926 [2007]). Here, the first prong is indisputably met; petit larceny,which is committed when a defendant "steals property" (Penal Law§ 155.25), is a lesser included offense of robbery in the third degree (see People v Rivera, 101 AD3d1478, 1481 [2012]). However, even when seen in the light most favorable todefendant (see People vBowman, 79 AD3d 1368, 1370 [2010], lv denied 16 NY3d 828 [2011]),there was no reasonable view of the evidence that would suggest that defendant stole thevictim's property without the use of force so as to justify submission of the lesser chargeto the jury (see People vWilkerson, 140 AD3d 1297, 1304 [2016]; People v Green, 134 AD3d 418, 418 [2015], lvdenied 27 NY3d 965 [2016]). As previously discussed, the evidence showed thatdefendant forcibly pulled the bag from the victim's hands, causing the handles to rip offof the bag, and, thereafter, tussled with the victim in an effort to retain possession of thebag. Accordingly, we find no error.
Supreme Court properly accepted defendant's prior Florida conviction for utteringforged instruments (see Fla Stat Ann § 831.02) as a predicate felonyfor purposes of sentencing defendant as a second felony offender. In doing so, the courtdetermined that the Florida crime was the equivalent of the New York crime of criminalpossession of a forged instrument in the second degree, a class D felony (seePenal Law § 170.25). In applying the "strict equivalency" test fordetermining if a foreign conviction may be utilized to adjudicate a defendant a secondfelony offender, a court must determine whether the foreign conviction "include[s] all theessential elements of a New York felony" (People v Ramos, 19 NY3d 417, 419 [2012]). This analysisrequires the court to engage in " 'a comparison of the crimes' elements as they arerespectively defined in the foreign and New York penal statutes,' without regard to thecharging instruments" (People vParker, 121 AD3d 1190, 1191 [2014], quoting People v Muniz, 74NY2d 464, 467-468 [1989]). Upon our review, we agree with the court's determinationthat the two crimes share essential elements and were sufficiently equivalent to permit theuse of the Florida crime as a predicate felony. Contrary to defendant's contention, the factthat the Florida statute requires both uttering and publication of aninstrument—whereas Penal Law § 170.25 requires [*5]merely uttering—does not alter this conclusion.Defendant does not identify, nor are we able to perceive, any set of circumstances inwhich an individual could violate the Florida statute without also violating the New Yorkstatute, and the fact that "it is possible to violate the [New York] statute without violatingthe [Florida] statute . . . is not a sufficient basis to preclude a predicatefelony determination" (People v De Gaspard, 170 AD2d 835, 839 [1991], lvdenied 77 NY2d 994 [1991]). Thus, the court did not err in sentencing defendant asa second felony offender on the basis of the prior Florida conviction (see People v Grubbs, 48 AD3d1186, 1186 [2008], lv denied 10 NY3d 811 [2008]; People v DeGaspard, 170 AD2d at 839).
Finally, in the absence of any objection, defendant's various claims of prosecutorialmisconduct are unpreserved for our review, and, in any event, "the record as a wholefails to disclose that the prosecutor engaged in a flagrant and pervasive pattern ofprosecutorial misconduct so as to deprive defendant of a fair trial" (People v Fiorino, 130 AD3d1376, 1380 [2015] [internal quotation marks and citations omitted], lvdenied 26 NY3d 1087 [2015]; see People v Winchell, 129 AD3d 1309, 1313 [2015],lv denied 26 NY3d 973 [2015]).
Peters, P.J., Rose, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Defendant didnot—and does not now—raise any challenge to the People's use of aperemptory challenge on this prospective juror.
Footnote 2:Prospective juror No. 11disclosed during voir dire that he was a collegiate football player. The prosecutorspecifically noted concern over a particular exchange with the prospective juror duringwhich, in response to the prosecutor's question about whether he would make a goodjuror, prospective juror No. 11 stated, "You scouting me so—" to which theprosecutor interjected, "We are. We are."