| People v Dunham |
| 2019 NY Slip Op 02265 [170 AD3d 569] |
| March 26, 2019 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Jermaine Dunham, Appellant. |
Christina A. Swarns, Office of the Appellate Defender, New York (Emma L. Shreefter ofcounsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (James J. Wen of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Joseph Dawson, J.), rendered May 13, 2011,convicting defendant, after a jury trial, of criminal possession of a weapon in the second degreeand resisting arrest, and sentencing him to an aggregate term of seven years, unanimouslyaffirmed.
The court properly denied defendant's suppression motion. The People met their burden ofpresenting evidence of the specific content of the description transmitted to the arresting officer,and evidence that defendant matched the description. Contrary to defendant's assertion, thearresting officer's direct testimony establishing these facts was not undermined oncross-examination, and in any event it was corroborated by inferences that could be drawn fromthe testimony of other officers. Even if the description was somewhat general, it providedreasonable suspicion to stop defendant based on a combination of factors (see e.g. People v Moise, 165 AD3d516 [1st Dept 2018], lv denied 32 NY3d 1127 [2018]), including the suspicious factthat defendant volunteered (falsely) to the officers that he had already been "checked."
The court properly denied defendant's application pursuant to Batson v Kentucky(476 US 79 [1986]). The record supports the court's finding that the nondiscriminatory reasonsprovided by the prosecutor for the challenges in question were not pretextual. This finding, basedprimarily on the court's assessment of the attorney's credibility, is entitled to great deference(see Snyder v Louisiana, 552 US 472, 477 [2008]; People v Hernandez, 75 NY2d350 [1990], affd 500 US 352 [1991]). Each of the proffered nondiscriminatory reasonshad a legitimate basis (see People vHecker, 15 NY3d 625, 663-664 [2010]), and the record fails to support defendant'sassertion that an isolated phrase employed by the prosecutor in explaining her jury selectionstrategy should be viewed as an actual concession of discriminatory intent. Defendant failed topreserve his claim of disparate treatment by the prosecutor of similarly situated panelists (see e.g. People v Cunningham, 21AD3d 746, 748-749 [1st Dept 2005], lv dismissed 6 NY3d 775 [2006]), and wedecline to review it in the interest of justice. As an alternative holding, we find no disparity thatwould compel a finding of pretext. We have considered and rejected defendant's remainingBatson arguments.
The court providently exercised its discretion in admitting evidence of an uncharged crime.The charges upon which defendant was being tried included a gunpoint robbery, of whichdefendant was ultimately acquitted. At trial, defendant contended that he did not commit therobbery, and that he did not possess the silver-colored pistol allegedly found in his possessionwhen he was arrested. Accordingly, a witness's testimony that defendant broke her car windowwith a silver metal object very shortly after the robbery was admissible. The testimony was notadmitted to demonstrate defendant's criminal propensity, and it was highly probative ofdefendant's identity as the robber and possessor of the weapon, because it tended to prove,circumstantially, that he was in continuing possession of a particular pistol (see People v DelVermo, 192 NY 470, 478-482 [1908]). This long-recognized method of proving identitydoes not depend on the existence of a unique modus operandi, and defendant's argumentsaddressed to the latter type of evidence are misplaced (see People v Winkfield, 98 AD3d 923 [1st Dept 2012], lvdenied 20 NY3d 1066 [2013]).
By failing to object, or failing to request further relief after the court took curative actions,defendant failed to preserve many of his challenges to the prosecutor's summation, and wedecline to review them in the interest of justice. As an alternative holding, we find no basis forreversal (see People v Overlee, 236 AD2d 133 [1st Dept 1997], lv denied 91NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-120 [1st Dept 1992],lv denied 81 NY2d 884 [1993]).
We perceive no basis for reducing the sentence. Concur—Sweeny, J.P., Richter, Tom,Kapnick, Oing, JJ.