PEOPLE v. TORRES (2001)

Judgment, Supreme Court, Bronx County (Robert Straus, J.), rendered February 25, 2000, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 22 years to life, unanimously affirmed.

 The court properly exercised its discretion in precluding defendant from eliciting various instances of his cooperation with the police, offered as “consciousness of innocence” evidence.  “There is a clear distinction between evidence of flight, which tends to show the consciousness of guilt, and contrary evidence which might show a clever attempt to avoid the consequences of the crime by assuming the appearance of innocence.”  (People v. Curtiss, 118 App.Div. 259, 263, 103 N.Y.S. 395).   A person involved in criminal activity has a strong incentive to feign nonchalance upon contact with the authorities, and such conduct would constitute a self-serving assertion of innocence that would constitute inadmissible hearsay (see, People v. Perry, 223 A.D.2d 479, 637 N.Y.S.2d 75).   Accordingly, evidence of consciousness of innocence is inadmissible except under “peculiar circumstances” not present here (People v. Curtiss, supra, at 262-263, 103 N.Y.S. 395;  cf.  United States v. Biaggi, 909 F.2d 662, 689-91 [2d Cir1990], cert. denied 499 U.S. 904, 111 S.Ct. 1102, 113 L.Ed.2d 213 [refusal of immunity admissible as consciousness of innocence evidence under circumstances presented] ).

 The court also properly exercised its discretion in precluding certain cross-examination of the prosecution witnesses concerning a motive to falsify since the questioning was based on speculation and lacked a good faith basis, and the probative value of the matters sought to be elicited was outweighed by the danger that the main issues would be obscured and the jury confused (see, People v. George, 197 A.D.2d 588, 602 N.Y.S.2d 643, lv. denied 83 N.Y.2d 852, 612 N.Y.S.2d 384, 634 N.E.2d 985;  see also, People v. Harrell, 209 A.D.2d 160, 618 N.Y.S.2d 631, affd. 86 N.Y.2d 806, 632 N.Y.S.2d 493, 656 N.E.2d 591).

 The court properly granted the People's application made pursuant to Batson v. Kentucky (476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69).   Although the reasons proffered by defense counsel for the challenge at issue were race-neutral, the record supports the court's conclusion that they were pretextual, a credibility determination entitled to great deference (see, People v. Torres, 284 A.D.2d 105, 725 N.Y.S.2d 845, lv. denied 96 N.Y.2d 908, 730 N.Y.S.2d 806, 756 N.E.2d 94).   The reasons advanced by defense counsel lacked factual support in the record.   In particular, although defense counsel asserted that one of his reasons for challenging the juror at issue was that he was childless and therefore would not have enough familiarity with young people to properly evaluate the testimony of the teenage witnesses, the record reveals that counsel failed to ask any follow up questions of the juror on this point (see, People v. Robinson, 226 A.D.2d 561, 640 N.Y.S.2d 613, lv. denied 88 N.Y.2d 884, 645 N.Y.S.2d 458, 668 N.E.2d 429).   Moreover, similarly situated non-Caucasian jurors were not challenged (see, People v. Allen, 86 N.Y.2d 101, 110, 629 N.Y.S.2d 1003, 653 N.E.2d 1173;  People v. Wooley, 249 A.D.2d 46, 671 N.Y.S.2d 58, lv. denied 92 N.Y.2d 863, 677 N.Y.S.2d 94, 699 N.E.2d 454).

We perceive no basis for reduction of sentence.