People v. Russo

• Decision Date: 20 October 1997
• Citation: 663 N.Y.S.2d 623,243 A.D.2d 658
• Parties: The PEOPLE, etc., Respondent, v. Eric RUSSO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 623

663 N.Y.S.2d 623

243 A.D.2d 658

The PEOPLE, etc., Respondent, v. Eric RUSSO, Appellant.

Supreme Court, Appellate Division Second Department.

Oct. 20, 1997.

Daniel L. Greenberg, New York City (Natalie Rea, of counsel), for appellant, and appellant pro se.

Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie and Seth M. Lieberman, of counsel), for respondent.

Before ROSENBLATT, J.P., and COPERTINO, KRAUSMAN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Greenberg, J.), rendered June 26, 1995, convicting him of assault in the first degree and assault in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

The defendant's claim that he was arrested without probable cause is without merit. The record establishes that the police were searching for the defendant for committing another crime, and received information from an identified individual in a face-to-face conversation that the defendant had committed the instant crime (see, People v. Smith, 124 A.D.2d 756, 757, 508 N.Y.S.2d 255; People v. Marin, 91 A.D.2d 616, 617, 456 N.Y.S.2d 403). The police also acted properly in arresting the defendant in his apartment although they had no warrant. Where a person with ostensible authority consents to police presence on the premises, either explicitly or tacitly, the right to be secure against warrantless arrests in private premises as expressed in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639, is not violated (see, People v. Schof, 136 A.D.2d 578, 579, 523 N.Y.S.2d 179). Here, the defendant's mother appeared to have the authority to consent to the entry of the apartment, since she admitted the officers into the apartment, and directed them to the defendant's room.

Contrary to the defendant's contention, a hearing to examine the circumstances under which he was identified was not necessary. The complainants testified that they had seen the defendant on numerous occasions over a period of years before the day of the incidents in question, rendering any possible suggestiveness in the identification procedure irrelevant (see, People v. Riley, 70 N.Y.2d 523, 522 N.Y.S.2d 842, 517 N.E.2d 520; People v. Garcia, 216 A.D.2d 412, 628 N.Y.S.2d 732; People v. Gissendanner, 48 N.Y.2d 543, 423 N.Y.S.2d 893, 399 N.E.2d 924; People v. Creech, 183 A.D.2d 777, 583 N.Y.S.2d 509; People v. McNeill, 129 A.D.2d 818, 819, 514 N.Y.S.2d 808).

The court did not err in seating a juror over the defendant's objection. The determination of whether an explanation for a challenge to a juror is merely pretextual is generally a matter for the trial court, the findings of which are entitled to great deference (see, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69; People v. Jupiter, 210 A.D.2d 431, 620 N.Y.S.2d 426). Here, the challenge was based primarily on the prospective juror's employment as a banker, and there was no showing that the nature of the employment was in any way related to the facts of the case. Thus, the nature of...