| People v Colon |
| 2020 NY Slip Op 06068 [187 AD3d 647] |
| October 27, 2020 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Randy Colon, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Marika Meis of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Stephen Kress of counsel), forrespondent.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered March 9, 2015,as amended April 17, 2015, convicting defendant, after a jury trial, of murder in the first andsecond degrees, burglary in the first degree (three counts), robbery in the first and second degrees(three counts each), criminal possession of a weapon in the second degree, assault in the seconddegree and promoting prison contraband in the first degree, and sentencing him, as a secondviolent felony offender, to an aggregate term of 49 years to life, unanimously affirmed.
The court properly denied defendant's motion to suppress evidence obtained at the time of hisarrest in Pennsylvania. There is no basis for disturbing the court's credibility determinations.When New York police arrested defendant in Pennsylvania, they immediately notified, and actedjointly with, Pennsylvania police. To the extent there was any irregularity regarding Pennsylvaniaprocedures for arrests by out-of-state authorities, the suppression court correctly found that therewas no evidence of an intentional or knowing disregard of legal requirements by the arrestingofficers (see People v Sampson, 73 NY2d 908 [1989]). The court also correctlydetermined that there was probable cause for defendant's arrest, based on the totality ofinformation known to police, including a description that referenced defendant's distinctive skincondition, as well as significant circumstantial evidence linking him to the crime (seegenerally People v Bigelow, 66 NY2d 417, 423 [1985]). The People also established by clearand convincing evidence that defendant voluntarily consented to a search of his cellphone(see generally People v Gonzalez, 39 NY2d 122 [1976]).
Defendant did not preserve any claim relating to cell site location information obtainedwithout a warrant. The fact that the Supreme Court of the United States had not yet decidedCarpenter v United States (585 US &mdash, 138 S Ct 2206 [2018]) at the time ofdefendant's trial does not affect the requirement of preservation (People v Crum, 184 AD3d 454,455 [1st Dept 2020], lv denied 35 NY3d 1065 [2020]). We decline to review this claim inthe interest of justice. As an alternative holding, we find that regardless of the admissibility of thecell site data, there was overwhelming evidence, including defendant's statement and eyewitnessidentifications, that independently established his guilt (see People v Crimmins, 36 NY2d230, 237 [1975]).
Defendant's argument that his application pursuant to Batson v Kentucky (476 US 79[1986]), should have been granted is also unpreserved. The record indicates that the defendantraised no objection when the court accepted the prosecutor's race-neutral explanations for thechallenges at issue as nonpretexual. The record also fails to support defendant's arguments that hewas not properly "afforded" the opportunity to make that claim, and that the court conflatedBatson's second and third steps (see People v Allen, 86 NY2d 101, 111 [1995];People v Washington, 56 AD3d258, 259 [1st Dept 2008], lv denied 11 NY3d 931 [2009]). As the moving party, itwas defendant's burden to make a record, and we reject his argument that the court prevented himfrom doing so, either as to his procedural or substantive claims (see People v Smocum,99 NY2d 418, 422-423 [2003]). We decline to review these arguments in the interest of justice.As an alternative holding, we find that the record supports the court's express or implied findingsthat the nondiscriminatory reasons provided by the prosecutor for the challenges in question werenot pretextual. This finding is entitled to great deference (see People v Hernandez, 75NY2d 350 [1990], affd 500 US 352 [1991]).
Defendant's argument that the court improvidently addressed the scheduling issues of threejurors is also unpreserved. Following a Buford inquiry, the court properly concluded thatthere was no basis to discharge a juror given her assurances to the court that she would remainfair despite her upcoming work schedule (see People v Buford, 69 NY2d 290 [1987]).Defendant failed to object to the court's inquiry as insufficient or otherwise deficient and alsofailed to argue that a Buford inquiry was required for two other jurors who both statedthat they had upcoming scheduled airline flights and we decline to review this unpreserved claimin the interest of justice (id.). As an alternative holding, we find no basis for reversal.
Although the People concede for the purposes of this appeal that the court was required toconduct a Frye hearing on the general acceptance of the forensic statistical tool beforeadmitting DNA evidence (People vWilliams, 35 NY3d 24 [2020]), the error in its admission was harmless under thestandard for nonconstitutional errors, in light of the other overwhelming evidence of defendant'sguilt (id. at 42-43). Concur—Kapnick, J.P., Webber, González, Shulman,JJ.