| People v Cook |
| 2018 NY Slip Op 03916 [161 AD3d 708] |
| May 31, 2018 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Tyrell Cook, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Claudia Trupp of counsel), forappellant.
Darcel D. Clark, District Attorney, Bronx (Shera Knight of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Joseph Dawson, J.), rendered September 24,2015, convicting defendant, after a jury trial, of attempted robbery in the first degree and assaultin the second degree, and sentencing him, as a second felony offender, to an aggregate term of sixyears, unanimously affirmed.
The court providently exercised its discretion in reopening a suppression hearing, beforerendering a decision, in order to permit the People to call an officer with additional informationtending to establish reasonable suspicion for defendant's detention (see People v Gnesin, 127 AD3d652 [1st Dept 2015], lv denied 25 NY3d 1164 [2015], lv denied 29 NY3d948 [2017]; People v McCorkle,111 AD3d 557 [1st Dept 2013], lv denied 24 NY3d 963 [2014]; see also People v Lee, 143 AD3d643 [1st Dept 2016]). The court had not made any ruling, and the circumstances did not posea risk of tailored testimony.
The court properly denied defendant's suppression motion. Although the People did not meettheir burden of going forward during the initial hearing, on the reopened hearing they sufficientlydemonstrated reasonable suspicion to justify defendant's detention. The victim's description ofhis assailant was too general to provide reasonable suspicion by itself. However, it did so whencombined with the very close spatial proximity between the crime and the detention, the fact thatdefendant was found in a subway station that was a likely escape route, that defendant reasonablyappeared to be hiding because he was sitting on the platform behind a barrier, and that defendantwas the only person who met the description in this nearly empty station at around midnight (see People v Brujan, 104 AD3d481 [1st Dept 2013], lv denied 21 NY3d 1014 [2013]; People v William, 81 AD3d 453[1st Dept 2011], affd 19 NY3d 891 [2012]). There was a satisfactory explanation of adiscrepancy between the victim's description of a garment his attacker was wearing and thegarment defendant wore.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinationsconcerning identification and credibility. The physical injury element of the assault convictionwas established by evidence supporting an inference that the victim's injury resulted insubstantial pain (see generally People vChiddick, 8 NY3d 445, 447-448 [2007]).
The court correctly denied the portion of defendant's CPL 330.30 motion to set aside theverdict that alleged misconduct by a juror. The issues raised in defendant's motion were referredto during defendant's cross-examination of a police witness, and did not involve specializedtraining or expertise (see People v Arnold, 96 NY2d 358, 364-368 [2001]; People vMaragh, 94 NY2d 569, 573-574 [2000]).
The court also correctly denied the part of the motion alleging that certain questions by theprosecutor improperly shifted the burden of proof. Defendant failed to preserve this claim,because he did not request any further relief after the court sustained objections to these [*2]questions and gave curative instructions (see People vSantiago, 52 NY2d 865 [1981]; see also People v Whalen, 59 NY2d 273, 280[1983]). An unpreserved trial error is not cognizable under CPL 330.30 (1), which is limited tomatters of law. Although this Court may review unpreserved claims in the interest of justice, wedecline to do so here. As an alternative holding, we find that the line of questioning was not sopervasive and flagrant as to warrant a new trial (see e.g. People v Whaley, 70 AD3d 570,571 [1st Dept 2010], lv denied 14 NY3d 894 [2010]).
Defendant's challenge to the court's identification charge is also unpreserved, and we declineto review it in the interest of justice. As an alternative holding, we reject it on the merits (see People v Vaughn, 132 AD3d456 [1st Dept 2015], lv denied 26 NY3d 1151 [2016]).
We perceive no basis for reducing the sentence. Concur—Sweeny, J.P., Richter,Andrias, Kahn, Moulton, JJ.