People v. Norman

• Decision Date: 01 May 2020
• Docket Number: KA 17–00203,381
• Parties: The PEOPLE of the State of New York, Respondent, v. Marcus A. NORMAN, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

183 A.D.3d 1240
123 N.Y.S.3d 360

The PEOPLE of the State of New York, Respondent,
v.
Marcus A. NORMAN, Defendant–Appellant.

381
KA 17–00203

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: May 1, 2020

D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT.

PATRICK E. SWANSON, DISTRICT ATTORNEY, MAYVILLE (MARILYN FIORE–LEHMAN OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, WINSLOW, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of burglary in the second degree ( Penal Law § 140.25 [2] ). We reject defendant's contention that County Court erred in refusing to suppress identification testimony arising from a showup procedure during which defendant was identified by a resident of the apartment where the burglary was committed. We conclude that the showup procedure, which was conducted within two hours of the burglary, was " ‘reasonable under the circumstances’ " ( People v. Cedeno, 27 N.Y.3d 110, 123, 31 N.Y.S.3d 434, 50 N.E.3d 901 [2016], cert denied ––– U.S. ––––, 137 S. Ct. 205, 196 L.Ed.2d 133 [2016] ; see People v. Brisco, 99 N.Y.2d 596, 597, 758 N.Y.S.2d 262, 788 N.E.2d 611 [2003] ; People v. Duuvon, 77 N.Y.2d 541, 543, 569 N.Y.S.2d 346, 571 N.E.2d 654 [1991] ). The showup procedure was "part of a continuous, ongoing police investigation ..., which spanned two [municipalities] and involved multiple law enforcement agencies, due in large part to the flight of defendant" ( People v. Johnson, 167 A.D.3d 1512, 1513, 89 N.Y.S.3d 505 [4th Dept. 2018], lv. denied 33 N.Y.3d 949, 100 N.Y.S.3d 165, 123 N.E.3d 824 [2019] ), and was conducted "as soon as practicable following defendant's apprehension" ( People v. August, 33 A.D.3d 1046, 1048, 822 N.Y.S.2d 334 [3d Dept. 2006], lv denied 8 N.Y.3d 878, 832 N.Y.S.2d 490, 864 N.E.2d 620 [2007] ). Moreover, the showup procedure was not rendered unduly suggestive by the fact that defendant was handcuffed (see People v. Stanley, 108 A.D.3d 1129, 1130, 970 N.Y.S.2d 136 [4th Dept. 2013], lv denied

123 N.Y.S.3d 363

22 N.Y.3d 959, 977 N.Y.S.2d 190, 999 N.E.2d 555 [2013] ), or by a police officer's comments to the witness inasmuch as those comments " ‘merely conveyed what a witness of ordinary intelligence would have expected under the circumstances’ " ( August, 33 A.D.3d at 1049, 822 N.Y.S.2d 334 ; see People v. Williams, 15 A.D.3d 244, 246, 789 N.Y.S.2d 155 [1st Dept. 2005], lv denied 5 N.Y.3d 771, 801 N.Y.S.2d 266, 834 N.E.2d 1275 [2005] ).

Defendant contends that the court erred in rejecting his Batson challenge with respect to the People's exercise of a peremptory strike on a prospective juror. We reject that contention. The court's determination whether a proffered race-neutral reason for striking a prospective juror is pretextual is accorded great deference on appeal (see People v. Linder, 170 A.D.3d 1555, 1558, 95 N.Y.S.3d 681 [4th Dept. 2019], lv denied 33 N.Y.3d 1071, 105 N.Y.S.3d 12, 129 N.E.3d 332 [2019] ; People v. Larkins, 128 A.D.3d 1436, 1441–1442, 8 N.Y.S.3d 755 [4th Dept. 2015], lv denied 27 N.Y.3d 1001, 38 N.Y.S.3d 110, 59 N.E.3d 1222 [2016] ). Here, the People's proffered reason was that the prospective juror stated during voir dire that she had been the victim of a burglary and that she was dissatisfied with the non-resolution of her case. We conclude that the proffered reason was sufficient to satisfy "the People's ‘quite minimal’ burden of providing a race-neutral reason" for exercising a peremptory strike ( People v. Herrod, 174 A.D.3d 1322, 1323, 101 N.Y.S.3d 804 [4th Dept. 2019], lv denied 34 N.Y.3d 951, 110 N.Y.S.3d 649, 134 N.E.3d 648 [2019] ; see generally Linder, 170 A.D.3d at 1558, 95 N.Y.S.3d 681 ).

We also reject the contention of defendant that the court erred in denying his challenges for cause with respect to three prospective jurors. " CPL 270.20(1)(b) provides that a party may challenge a potential juror for cause if the juror ‘has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial’ " ( People v. Harris, 19 N.Y.3d 679, 685, 954...