People v. Yarbrough

• Citation: 158 A.D.2d 811,551 N.Y.S.2d 397
• Parties: The PEOPLE of the State of New York, Respondent, v. Bryant K. YARBROUGH, Appellant.
• Decision Date: 15 February 1990
• Court: New York Supreme Court Appellate Division

Page 397

551 N.Y.S.2d 397

158 A.D.2d 811

The PEOPLE of the State of New York, Respondent, v. Bryant K. YARBROUGH, Appellant.

Supreme Court, Appellate Division Third Department.

Feb. 15, 1990.

Louis-Jack Pozner, Albany, for appellant.

Sol Greenberg, Dist. Atty., Albany, for respondent.

Before CASEY, J.P., and WEISS, LEVINE, MERCURE and HARVEY, JJ.

WEISS, Justice.

Appeal from a judgment of the County Court of Albany County (Harris, J.), rendered December 9, 1987, upon a verdict convicting defendant of the crimes of robbery in the first degree and robbery in the second degree.

A trial jury convicted defendant of robbery in the first degree and robbery in the second degree, both of which crimes were charged in an indictment arising out of an armed robbery occurring on January 2, 1987 at the Ground Round Restaurant in the City of Albany. On this appeal, defendant has urged in five distinct arguments why a new trial should be granted. We disagree with each and, accordingly, affirm.

The initial argument is that defendant was denied his right to a speedy trial within six months of the commencement of the criminal proceedings under both constitutional and statutory standards. The July 16, 1987 motion shows that defendant was arraigned on February 13, 1987 upon a February 10, 1987 indictment and that defendant remained incarcerated throughout. However, the record shows that the People had filed a statement of readiness for trial on February 13, 1987, a copy of which was given to Matthew Kelly, defendant's attorney at that time, and that the delay in reaching trial was the result of calendar congestion. Moreover, the People contend that they indicated their readiness for trial on the record on approximately 10 occasions when the case was reached on the court calendar. While defendant has concentrated on the insufficiency of the answering affidavit filed by the People, he has not controverted the People's assertion that they announced their readiness for trial each time the case was called. We further find that the five criteria to be considered in determining whether a defendant's constitutional rights to a speedy trial were violated (U.S. Const. 6th Amend.; see, People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303) have been satisfactorily answered here (see, People v. Wellington, 151 A.D.2d 796, 542 N.Y.S.2d 385, lv. denied 74 N.Y.2d 853, 546 N.Y.S.2d 1018, 546 N.E.2d 201). We similarly find that the record supports County Court's determination that defendant's speedy trial rights under CPL 30.30(1)(a) were not violated. The prosecution provided and communicated a written notice of readiness for trial to the court and defense counsel and also demonstrated such readiness for trial throughout (see, People v. Kendzia, 64 N.Y.2d 331, 486 N.Y.S.2d 888, 476 N.E.2d 287). Nor was the court's failure to conduct a hearing on the speedy trial motion error. On September 29, 1987, in argument before County Court on a habeas corpus writ and on the CPL 30.30 motion defendant did not controvert either the People's February 1987 statement of readiness or their continued assertions of readiness. A hearing pursuant to CPL 210.45 was necessary only if the papers presented showed the existence of a factual dispute (see, People v. Santos, 68 N.Y.2d 859, 508 N.Y.S.2d 411, 501 N.E.2d 19; People v. Gruden, 42 N.Y.2d 214, 217, 397 N.Y.S.2d 704, 366 N.E.2d 794). Defendant has failed to demonstrate that the nine-month period between his arraignment and trial was excessive, resulted in prejudice to his defense or constituted a per se violation of his right to a speedy trial (see, People v. Wellington, supra; People v. Johnson, 128 A.D.2d 915, 512 N.Y.S.2d 724, lv. denied 69 N.Y.2d 1005, 517 N.Y.S.2d 1038, 511 N.E.2d 97).

We further find that defendant has failed to establish a prima facie case of purposeful discrimination by the prosecution in selection of the jury by the improper use of peremptory challenges to exclude three black persons (see, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69; see also, Holland v. Illinois, 493 U.S. ----, 110 S.Ct. 803, 107 L.Ed.2d 905). Although this court has declined to review this issue where, as here, the record did not include a transcript of the voir dire (see, People v. Morales, 126 A.D.2d 836, 510 N.Y.S.2d 756, lv. denied 69 N.Y.2d 953, 516 N.Y.S.2d 1037, 509 N.E.2d 372), we find that the explanation for each challenge was adequately set forth on the record by the prosecutor and that the burden of demonstrating race-neutral reasons for the exclusion of these persons as jurors has been met (see, People v. Miller, 144 A.D.2d 94, 537 N.Y.S.2d 318). This court recently held that "once the prosecution has advanced a sufficient neutral explanation related to the case to be tried * * * whether the exclusion of black jurors was racially motivated [will] 'largely * * * turn on evaluation of credibility' by the trial court in its findings, and 'a reviewing court ordinarily should give those findings great deference' " (People v. Bessard, 148 A.D.2d 49, 53, 543 N.Y.S.2d 760, lv. denied 74 N.Y.2d 845, 546 N.Y.S.2d 1010, 546 N.E.2d 193, quoting Batson v. Kentucky, supra, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21). We find no basis to disturb County Court's rejection of defendant's contention that the discriminatory use of peremptory challenges occurred.

Equally unpersuasive are defendant's arguments that County Court improperly denied suppression of the witness identification testimony. The record does...