People v. Nelson

• Decision Date: 18 April 1995
• Citation: 214 A.D.2d 411,625 N.Y.S.2d 176
• Parties: The PEOPLE of the State of New York, Respondent, v. Bruce NELSON, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 176

625 N.Y.S.2d 176

214 A.D.2d 411

The PEOPLE of the State of New York, Respondent, v. Bruce NELSON, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

April 18, 1995.

D. Sheridan, for respondent.

L. Fleischer, for defendant-appellant.

Before MURPHY, P.J., and RUBIN, ASCH, WILLIAMS and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), rendered June 24, 1992, convicting defendant, after jury trial, of robbery in the first and second degrees, and sentencing him, as a second felony offender, to concurrent terms of 10 1/2 to 21 years and 5 to 10 years, respectively, unanimously affirmed.

The police acted properly in briefly detaining defendant, who fit the radioed description of one of the perpetrators of a street robbery and was observed within minutes of the robbery running quickly along the street approximately three blocks from the scene of the crime, for prompt showup purposes (People v. Duuvon, 77 N.Y.2d 541, 569 N.Y.S.2d 346, 571 N.E.2d 654). Police presence was to be expected, and as the complainant rejected other showup subjects similarly detained, but identified the unrestrained defendant immediately, the procedure cannot be viewed as unduly suggestive (see, People v. Maybell, 198 A.D.2d 108, 603 N.Y.S.2d 161, lv. denied 82 N.Y.2d 927, 610 N.Y.S.2d 179, 632 N.E.2d 489).

The complainant's testimony that he observed defendant during his nighttime approach under street lighting and at close range, as the complainant struggled with defendant over a knife and attempted to prevent removal of his jewelry, and the circumstances of the street showup identification within minutes of the robbery, were properly before the jurors for consideration. Their determination of the reliability of the complainant's showup and in-court identification is not unreasonable and will not be disturbed by this Court (People v. Siu Wah Tse, 91 A.D.2d 350, 458 N.Y.S.2d 589, lv. denied 59 N.Y.2d 679, 463 N.Y.S.2d 1039, 450 N.E.2d 263).

The record does not support defendant's claim that the trial court interfered excessively and improperly in the proceedings. The trial court properly noted, sua sponte, the prima facie existence of a Batson violation when the defense peremptorily challenged eight out of ten white venirepersons, and properly requested that defense counsel provide race-neutral reasons for the challenges (see, People v. Maisonet, 209 A.D.2d 297, 618 N.Y.S.2d 718). In this connection, we note that defense counsel's explanations were accepted by the court.

As defense counsel persisted in improper argument on rulings despite the court's explicit directions, out of the presence of the jury, to...