PEOPLE v. TAYLOR

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Lawrence TAYLOR, Defendant-Appellant.

Decided: November 21, 2006

FRIEDMAN, J.P., SULLIVAN, NARDELLI, CATTERSON, McGUIRE, JJ. Steven Banks, The Legal Aid Society, New York (Katheryne M. Martone of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Susan Gliner of counsel), for respondent.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered October 16, 2003, convicting defendant, after a jury trial, of burglary in the first degree, robbery in the first degree (two counts), attempted robbery in the first degree, assault in the first degree and two counts each of criminal possession of a weapon in the second and third degrees, and sentencing him, as a persistent violent felony offender, to an aggregate term of 20 years to life, unanimously affirmed.

 The court properly denied defendant's challenges for cause to two panelists.   A panelist who had been the victim of a robbery never evinced a state of mind which would call her impartiality into question (see People v. Arnold, 96 N.Y.2d 358, 362-363, 729 N.Y.S.2d 51, 753 N.E.2d 846 [2001] ), and, in any event, she unequivocally stated that she could be fair (see People v. Chambers, 97 N.Y.2d 417, 419, 740 N.Y.S.2d 291, 766 N.E.2d 953 [2002] ).   Defendant's arguments concerning the other venireperson are similar to arguments rejected by this Court on a codefendant's appeal (People v. Dotson, 30 A.D.3d 181, 182, 815 N.Y.S.2d 581 [2006], lv. denied 7 N.Y.3d 788, 821 N.Y.S.2d 817, 854 N.E.2d 1281 [2006] ), and we see no reason to reach a different result herein.

Defendant did not preserve his claim under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 [1986] relating to the prosecutor's peremptory challenges, since the record clearly establishes that only the codefendant made such a claim (see People v. Buckley, 75 N.Y.2d 843, 552 N.Y.S.2d 912, 552 N.E.2d 160 [1990] ), and that defendant did not join in this argument, but only in the codefendant's opposition to the People's reverse-Batson application (see People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235 [1990], cert. denied 498 U.S. 824, 111 S.Ct. 77, 112 L.Ed.2d 50 [1990] ).   We decline to reach the issue in the interest of justice.   Were we to reach the issue, we would find it to be without merit.   Defendant's arguments regarding the prosecutor's reverse-Batson application are similar to arguments rejected by this Court on the codefendant's appeal (People v. Dotson, 30 A.D.3d at 182, 815 N.Y.S.2d 581), and we, once again, see no reason to reach a different result herein.

 The court properly denied defendant's motion to suppress two identifications made shortly after the robbery, and in close proximity to its location.   One of the identifications was not a police-arranged procedure, but was spontaneously made by an off-duty detective who happened to see defendant and the other perpetrators running from the scene;  in any event, this prompt and reliable identification was admissible regardless of whether it was police-arranged (see e.g. People v. Kirkland, 192 A.D.2d 414, 596 N.Y.S.2d 689 [1993], lv. denied 81 N.Y.2d 1075, 601 N.Y.S.2d 594, 619 N.E.2d 672 [1993];  People v. Melette, 176 A.D.2d 480, 574 N.Y.S.2d 559 [1991], lv. denied 79 N.Y.2d 853, 580 N.Y.S.2d 724, 588 N.E.2d 759 [1992] ).   As to the second identification, the showup was properly conducted under the exigent circumstances present, in close proximity to the time and place of the crime, and was part of an unbroken chain of events (see People v. Duuvon, 77 N.Y.2d 541, 544-545, 569 N.Y.S.2d 346, 571 N.E.2d 654 [1991] ).   The manner in which the procedure was conducted was not unduly suggestive, given these circumstances (see People v. McCorkle, 272 A.D.2d 273, 274, 709 N.Y.S.2d 519 [2000], lv. denied 95 N.Y.2d 936, 721 N.Y.S.2d 612, 744 N.E.2d 148 [2000] ).   In any event, were we to find that any or all of the showup and in-court identification evidence should have been suppressed, we would find such error to be harmless since there was overwhelming evidence of defendant's guilt.