PEOPLE v. DELEON (2023)

Supreme Court, New York County (Mark Dwyer, J. at suppression hearing;  Gilbert C. Hong, J. at jury trial and sentencing), rendered June 21, 2019, convicting defendant of robbery in the first and second degrees, criminal possession of a weapon in the third degree, and criminal possession of stolen property in the fifth degree, and sentencing him, as a second felony offender, to an aggregate term of 10 years, unanimously affirmed.

The court properly denied defendant's suppression motion.  The officers stopped defendant and his codefendant based on a description, including the fact that one of the two robbers wore a black ski mask, that was sufficiently specific to provide reasonable suspicion in light of the spatial and temporal proximity between the robbery and the police encounter, and the fact that the police did not see anyone else in the area (see e. g. People v. Smickle, 201 A.D.3d 525, 526, 160 N.Y.S.3d 38 [1st Dept. 2022], lv denied 38 N.Y.3d 954, 165 N.Y.S.3d 443, 185 N.E.3d 964 [2022]).  It was particularly significant that defendant was wearing a ski mask, notwithstanding that the events occurred in winter.  Moreover, the police used the “Find My iPhone” app, which provided at least some indication that the phone taken from the victim was near the location, five blocks from the robbery, where defendant was apprehended.

The trial 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).  Defendant has not established that the vaguely defined hybrid group against which the prosecutor allegedly discriminated qualified as a cognizable group under Batson (see People v. Bridgeforth, 28 N.Y.3d 567, 573, 46 N.Y.S.3d 824, 69 N.E.3d 611 [2016];  People v. Smith, 81 N.Y.2d 875, 597 N.Y.S.2d 633, 613 N.E.2d 539 [1993];  compare People v. Watson, 141 A.D.3d 23, 30, 31 N.Y.S.3d 478 [1st Dept. 2016]).  In any event, even assuming the group about which defendant complains of discrimination is cognizable under Batson, defendant did not produce statistical or nonstatistical “evidence sufficient to permit the trial judge to draw an inference that discrimination ha[d] occurred” (Johnson v. California, 545 U.S. 162, 170, 125 S.Ct. 2410, 162 L.Ed.2d 129 [2005];  see People v. Hecker, 15 N.Y.3d 625, 651–655, 917 N.Y.S.2d 39, 942 N.E.2d 248 [2010], cert denied 563 U.S. 947, 131 S.Ct. 2117, 179 L.Ed.2d 911 [2011]), and thus defendant failed to meet his initial burden to make a prima facie showing of unlawful discrimination in the People's exercise of challenges.

The trial court providently exercised its discretion in denying defendant's mistrial motion made on the basis of a single remark in the prosecutor's summation.  The prosecutor's comment about defendant's possession of a blade at the time of the police encounter was a reasonable response to the defense summation, and was in any event not so inflammatory as to warrant reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993]).

The trial court also providently exercised its discretion in admitting limited testimony about the officers’ use of the Find My iPhone app, which was not offered for its truth, but to complete the narrative and explain police actions (see e. g. People v. Barnes, 57 A.D.3d 289, 868 N.Y.S.2d 663 [1st Dept. 2008], lv denied 12 N.Y.3d 781, 879 N.Y.S.2d 57, 906 N.E.2d 1091 [2009]).  The evidence only showed that the police acted on their belief that the app indicated the approximate location of the victim's phone.  For this purpose, police testimony giving basic information about the app was a sufficient foundation.  Defendant fails to show that the People violated the court's ruling.  Defendant failed to preserve his argument that the court should have given a limiting instruction, and we decline to review it in the interest of justice.  As an alternative holding, we find no basis for reversal.  In any event, any error involving the testimony about the Find My iPhone app was harmless in light of the overwhelming evidence of guilt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]), which included the recovery of the victim's phone from defendant's pocket shortly after the robbery (see e.g. People v. Jiggetts, 168 A.D.3d 507, 508, 91 N.Y.S.3d 95 [1st Dept. 2019], lv denied 33 N.Y.3d 977, 101 N.Y.S.3d 258, 124 N.E.3d 747 [2019]).

We perceive no basis for reducing the sentence.