People v. Colon

• Decision Date: 03 June 1996
• Citation: 644 N.Y.S.2d 57,228 A.D.2d 449
• Parties: The PEOPLE, etc., Respondent, v. Peter COLON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 57

644 N.Y.S.2d 57

228 A.D.2d 449

The PEOPLE, etc., Respondent, v. Peter COLON, Appellant.

Supreme Court, Appellate Division Second Department.

June 3, 1996.

Russell C. Morea, Kew Gardens, for appellant.

Richard A. Brown, District Attorney, Kew Gardens (Steven J. Chananie, Jeanette Lifschitz, and Peri A. Kadanoff, of counsel), for respondent.

Before SULLIVAN, J.P., and JOY, KRAUSMAN and McGINITY, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Corrado, J.), rendered July 29, 1993, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Sherman, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

Contrary to the defendant's contention, the hearing court properly permitted the People to call an additional witness to establish that the defendant waived his right to counsel at the lineup. The prosecutor's motion to present further evidence was made before the hearing court rendered its decision and, under these circumstances, it was within the sound discretion of the hearing court to grant the motion (see, People v. Harrington, 193 A.D.2d 756, 597 N.Y.S.2d 723). We note that this situation is distinguishable from People v. Havelka, 45 N.Y.2d 636, 412 N.Y.S.2d 345, 384 N.E.2d 1269, in which the People attempted to argue new points after losing on the merits (see, People v. Harrington, supra ). Furthermore, the evidence adduced at the hearing was sufficient to demonstrate that the defendant acquiesced in his attorney's decision to forego attending the lineup (see, People v. Yut Wai Tom, 53 N.Y.2d 44, 439 N.Y.S.2d 896, 422 N.E.2d 556; cf., People v. Thomas, 155 A.D.2d 706, 548 N.Y.S.2d 271; People v. McCrimmon, 142 A.D.2d 606, 530 N.Y.S.2d 260). Accordingly, there is no merit to the defendant's claim that the hearing court should have suppressed the complainant's lineup identification.

We find, however, that the defendant is entitled to a new trial because his statutory right to exercise peremptory challenges was violated when the trial court seated a prospective juror whom the defense had previously challenged in an effort to expedite jury selection (see, CPL 270.25[1] ). The record shows that at the close of the second round of voir dire, the parties had selected...