People v. Steans
| Decision Date | 03 June 1991 |
| Citation | 571 N.Y.S.2d 85,174 A.D.2d 582 |
| Parties | The PEOPLE, etc., Respondent, v. Rudy STEANS, a/k/a John Metcalf, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Thomas E. Crice, New York City, for appellant.
Richard A. Brown, District Attorney, Kew Gardens (Joseph Scarglato, of counsel), for respondent.
Before KOOPER, J.P., and HARWOOD, ROSENBLATT and RITTER, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from two judgments of the Supreme Court, Queens County (Naro, J.), both rendered April 16, 1989, convicting him of robbery in the second degree (one count under Indictment No. 5985/87 and two counts under Indictment No. 6169/87), and criminal impersonation in the first degree (one count each under Indictment Nos. 5985/87 and 6169/87), upon jury verdicts, and imposing sentences. The appeals bring up for review the denial, after a hearing, of that branch of the defendant's motion which was to suppress identification testimony.
ORDERED that the judgments are affirmed.
The defendant contends that the prosecutor used his peremptory challenges in a racially exclusive manner against blacks in violation of the holding of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. While the defendant initially objected to the prosecutor's use of peremptory challenges during voir dire, in the colloquy that followed the defendant did not press the issue further by moving for a mistrial. Nor did the defendant object to the court's corrective action of asking the prosecutor to provide a race-neutral explanation for his challenges and disallowing one of the prosecutor's challenges and seating a black person on the jury. Thus, we find that the issue of law is not preserved for appellate review (see, CPL 470.05[2]; People v. Rosado, 166 A.D.2d 544, 560 N.Y.S.2d 825). However, we have reviewed the issue in the exercise of our interest of justice jurisdiction and find that the court's prompt action in asking the prosecutor to provide a race-neutral explanation for his challenges and disallowing one of the prosecutor's challenges and seating a black person on the jury was the appropriate remedy to employ. Therefore, a new trial is not warranted (see, People v. Irizarry, 165 A.D.2d 715, 560 N.Y.S.2d 279).
We also reject the defendant's contention that the hearing court improperly conducted a portion of the suppression hearing in his absence. Defense counsel expressly requested, for tactical reasons, that his client's presence...
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Caston v. Costello, 97CV7623 (ARR).
... ... Thus, he renewed the Batson application: ... Since the People have also struck Miss Smyler, who is also an Afro-American female, and they have seemed to have used an inordinate amount of their strikes against ... Steans, 174 A.D.2d 582, 571 N.Y.S.2d 85 (2d Dep't 1991) (defense counsel never moved for mistrial); People v. Rosado, 166 A.D.2d 544, 560 N.Y.S.2d 825 ... ...
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... ... Davis, 809 F.2d 1194, 1202, cert. denied 483 U.S. 1007, 1008, 107 S.Ct. 3234, 3235, 97 L.Ed.2d 740; but see, People v. Steans, 174 A.D.2d 582, 571 N.Y.S.2d 85, lv. denied 78 N.Y.2d 1015, 575 N.Y.S.2d 823, 581 N.E.2d 1069; People v. [177 A.D.2d 192] Manigo, 165 A.D.2d 660, 560 N.Y.S.2d 38). A defendant's post-explanation silence does not signal agreement with the prosecution nor does it amount to a concession that the ... ...
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People v. Holland
... ... He did not request a hearing or a further ruling by the trial court, nor did he move for a mistrial. Thus, the Batson issue is not preserved for appellate review (see, People v. Campanella, 176 A.D.2d 813, 575 N.Y.S.2d 137; People v. Steans, 174 A.D.2d 582, 571 N.Y.S.2d 85; ... People v. Rosado, 166 A.D.2d 544, 560 N.Y.S.2d 825). We decline to reach this issue in the interest of justice. In any event, the absence of a complete record of the voir dire precludes any finding as to the defendant's establishment of a prima facie ... ...
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People v. Hernandez
... ... Allen, 86 N.Y.2d 101, 111, 629 N.Y.S.2d 1003, 653 N.E.2d 1173; People v. Caston, 239 A.D.2d 355, 657 N.Y.S.2d 979; People v. Steans, 174 A.D.2d 582, 571 N.Y.S.2d 85). In any event, the absence of a complete record of the voir dire precludes any finding as to the defendant's ... establishment of a prima facie case of purposeful discrimination (see, People v. Williams, 260 A.D.2d 651, 687 N.Y.S.2d 266; People v. Campanella, ... ...