People v. Malik

• Decision Date: 20 November 1995
• Citation: 221 A.D.2d 567,634 N.Y.S.2d 146
• Parties: The PEOPLE, etc., Respondent, v. Thomas MALIK, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 146

634 N.Y.S.2d 146

221 A.D.2d 567

The PEOPLE, etc., Respondent, v. Thomas MALIK, Appellant.

Supreme Court, Appellate Division Second Department.

Nov. 20, 1995.

John J. Cox, Astoria, for appellant.

William L. Murphy, District Attorney, Staten Island (Karen F. McGee and Elva Feliciano, of counsel), for respondent.

Before BRACKEN, J.P., and MILLER, ALTMAN and FLORIO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Kuffner, J.), rendered November 6, 1992, convicting him of robbery in the first degree (three counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

We disagree with the defendant's contention that the trial court erred by denying his motions to excuse prospective jurors who had allegedly observed him on the street while he was in handcuffs. The general rule is that the trial court should lean towards disqualifying prospective jurors of dubious impartiality rather than testing the bounds of discretion by permitting such jurors to serve (see, People v. Branch, 46 N.Y.2d 645, 651, 415 N.Y.S.2d 985, 389 N.E.2d 467). However, absent evidence that the prospective jurors would not have been impartial and considering their expurgatory oath, the trial court did not improvidently exercise its discretion by denying the defendant's motions to excuse the prospective jurors in question (see, People v. Dehler, 216 A.D.2d 643, 628 N.Y.S.2d 413 (1995); see also, People v. Colon, 71 N.Y.2d 410, 526 N.Y.S.2d 932, 521 N.E.2d 1075, cert. denied, 487 U.S. 1239, 108 S.Ct. 2911, 101 L.Ed.2d 943; People v. Buford, 69 N.Y.2d 290, 514 N.Y.S.2d 191, 506 N.E.2d 901). Moreover, there is no evidence in the record to support the defendant's contention. One of the prospective jurors, when questioned by the court, stated that he had not seen the defendant on the street after the previous day's court session. The other stated that, although she saw a couple of people board a Department of Correction's bus, she did not make eye contact with or recognize anyone and she could not describe any of the people whom she saw.

The People sustained their burden of proving the third count of the indictment, which charged the defendant with robbery in the first degree, even though the victim of that robbery did not testify at trial. "[W]hile it would be preferable practice in cases such as [this] for the prosecution to introduce direct proof of another's ownership of the subject [property], failure to do so is not necessarily fatal to the People's case * * * [since] the defendant's lack of ownership may reasonably be inferred from the surrounding circumstances" (People v. Borrero, 26 N.Y.2d 430, 436, 311 N.Y.S.2d 475, 259 N.E.2d 902; see also, People v. Stafford, 173 A.D.2d 233, 234, 569 N.Y.S.2d 441; People v. Hardwick, 137 A.D.2d 714, 716-717, 524 N.Y.S.2d 798). Viewing the evidence adduced at trial in the light most favorable to the prosecution...