People v. Manuel

• Decision Date: 13 April 1992
• Parties: The PEOPLE, etc., Respondent, v. Barry MANUEL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 735

582 N.Y.S.2d 735

182 A.D.2d 711

The PEOPLE, etc., Respondent, v. Barry MANUEL, Appellant.

Supreme Court, Appellate Division Second Department.

April 13, 1992.

Joel A. Brenner, East Northport (Richard Langone, on the brief), for appellant.

James M. Catterson, Jr., Dist. Atty., Riverhead (Steven A. Hovani and Mark D. Cohen, of counsel), for respondent.

Before MANGANO, P.J., and BRACKEN, ROSENBLATT and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (D'Amaro, J.), rendered April 6, 1987, convicting him of murder in the second degree, robbery in the first degree (five counts), robbery in the second degree, assault in the first degree (two counts) and unauthorized use of a motor vehicle in the first degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of certain branches of the defendant's omnibus motion which were to suppress certain identification testimony, and the defendant's statements to law enforcement authorities.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered. The facts have been considered and are determined to have been established.

The defendant was convicted of multiple charges in connection with three separate robberies, including one robbery-homicide, all of which occurred within the space of 15 days, and within the same general area. The defendant used a similarly brutal and cowardly modus operandi in each case, and we conclude that the Supreme Court properly determined that the charges arising out of the three transactions should be tried jointly (see, CPL 200.20[2][b], [c]; People v. Bongarzone, 69 N.Y.2d 892, 895, 515 N.Y.S.2d 227, 507 N.E.2d 1083; People v. Beam, 57 N.Y.2d 241, 455 N.Y.S.2d 575, 441 N.E.2d 1093; People v. Hunter, 177 A.D.2d 1015, 578 N.Y.S.2d 34; People v. Simmons, 177 A.D.2d 1024, 578 N.Y.S.2d 42; People v. Matthews, 175 A.D.2d 24, 573 N.Y.S.2d 157; People v. Davis, 156 A.D.2d 969, 970, 550 N.Y.S.2d 759; People v. Luke, 155 A.D.2d 890, 547 N.Y.S.2d 724; People v. McQueen, 170 A.D.2d 696, 566 N.Y.S.2d 940; People v. Hainson, 161 A.D.2d 802, 558 N.Y.S.2d 850; People v. Bowman, 155 A.D.2d 606, 547 N.Y.S.2d 425; People v. Lyde, 98 A.D.2d 650, 469 N.Y.S.2d 716). However, for the following reasons, we conclude that a new trial must be ordered.

First, we find that a new trial is necessary because the prosecutor exercised his peremptory challenges in a discriminatory manner (see, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69; People v. Hernandez, 75 N.Y.2d 350, 355, 553 N.Y.S.2d 85, 552 N.E.2d 621, affd 500 U.S. ----, 111 S.Ct. 1859, 114 L.Ed.2d 395). Although the prosecutor cited a race-neutral basis for his removal of two potential black jurors, the supposedly race-neutral basis asserted by the prosecutor (having a relative who is, or has been, prosecuted for a crime) could have been, but was not applied in order to disqualify several nonblack jurors, one of whom had a relative who was jailed for assault and robbery. Under the totality of the circumstances, we conclude that the nonracial basis advanced in order to justify the exercise of the prosecutor's peremptory challenges to two potential black jurors was a pretext (see, People v. Hernandez, supra ).

A new trial is also necessary because the Supreme Court improperly permitted one of the two complaining witnesses to make an in-court identification. The Supreme Court found that this witness had participated in a tainted lineup identification procedure. Therefore, an in-court identification should not have been permitted except upon a showing that this witness's ability to recall the features of the perpetrator survived the taint of the lineup. However, there was no hearing on this issue, and there was no finding that the witness had such an independent recollection, or that such a recollection could have served as an ...