PEOPLE v. WASHINGTON (2008)

Judgment, Supreme Court, New York County (Michael A. Corriero, J.), rendered August 10, 2006, convicting defendant, after a jury trial, of robbery in the first and second degrees, and sentencing him to concurrent terms of 7 years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).   There is no basis for disturbing the jury's determinations concerning identification and credibility.   Although the victim did not identify defendant at trial, he made a reliable lineup identification.   That identification was corroborated by defendant's possession of the victim's cell phone, a circumstance for which defendant provided an implausible explanation.

Whether to provide an expanded identification charge, and the content of such a charge, are matters within a trial court's discretion (see People v. Knight, 87 N.Y.2d 873, 638 N.Y.S.2d 938, 662 N.E.2d 256 [1995];  People v. Whalen, 59 N.Y.2d 273, 278-279, 464 N.Y.S.2d 454, 451 N.E.2d 212 [1983] ), and we find that the court, which delivered a thorough charge on identification, properly exercised its discretion when it declined to add language specifically directing the jury's attention to the cross-racial aspect of the victim's identification of defendant (see People v. Applewhite, 298 A.D.2d 136, 748 N.Y.S.2d 4 [2002], lv. denied 99 N.Y.2d 625, 760 N.Y.S.2d 106, 790 N.E.2d 280 [2003] ).

The court properly denied defendant's application pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 [1986].   After the prosecution explained its reasons for the challenges at issue, defense counsel remained silent and raised no objection when the court accepted these reasons as nonpretextual.   Thus, despite ample opportunity to do so, defendant failed to preserve his substantive objections to the court's ultimate ruling (see People v. Smocum, 99 N.Y.2d 418, 423-424, 757 N.Y.S.2d 239, 786 N.E.2d 1275 [2003];  People v. Allen, 86 N.Y.2d 101, 111, 629 N.Y.S.2d 1003, 653 N.E.2d 1173 [1995] ), and we decline to review them in the interest of justice.   Defendant also failed to preserve his claim that, in arriving at its ruling, the court failed to follow the proper Batson procedure, and we likewise decline to review it.   As an alternative holding, we also reject all of defendant's substantive and procedural claims on the merits.   Viewed in context, the court's ultimate determination was a proper ruling, under step three of Batson, that the prosecutor's race-neutral reasons were nonpretextual, and the court implicitly made the appropriate factual findings (see People v. Brown, 17 A.D.3d 283, 284-285, 793 N.Y.S.2d 425 [2005], lv. denied 5 N.Y.3d 804, 803 N.Y.S.2d 33, 836 N.E.2d 1156 [2005] ).   These findings are supported by the record and entitled to great deference (see People v. Hernandez, 75 N.Y.2d 350, 553 N.Y.S.2d 85, 552 N.E.2d 621 [1990], affd. 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 [1991] ).   While the court may have used the wrong nomenclature in describing its step-three ruling, that does not entitle defendant to a new trial.