PEOPLE v. BANKS

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

The PEOPLE of the State of New York, Respondent, v. Brandon BANKS, Defendant-Appellant.

Decided: October 13, 2009

SAXE, J.P., NARDELLI, BUCKLEY, ACOSTA, FREEDMAN, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Bruce D. Austern of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (David P. Stromes of counsel), for respondent.

Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered November 6, 2008, convicting defendant, after a jury trial, of two counts of robbery in the first degree and two counts of robbery in the second degree, and sentencing him to an aggregate term of 7 years, unanimously affirmed.

 The testimony of the victim of a nearby and contemporaneous uncharged robbery was properly admitted as it was inextricably linked with the charged robberies (see People v. Vails, 43 N.Y.2d 364, 368-369, 401 N.Y.S.2d 479, 372 N.E.2d 320 [1977];  People v. Gines, 36 N.Y.2d 932, 373 N.Y.S.2d 543, 335 N.E.2d 850 [1975];  People v. Pettaway, 30 A.D.3d 257, 258, 817 N.Y.S.2d 31 [2006], lv. denied 7 N.Y.3d 816, 822 N.Y.S.2d 491, 855 N.E.2d 807 [2006] ).   The charged and uncharged robberies overlapped in time and were essentially part of a single event.   The challenged testimony thus helped to explain the events to the jury and provide a believable context for testimony about the robbers' behavior in moving back and forth.   The court's limiting instruction minimized any prejudicial effect.

Defendant's uncharged crimes argument relating to certain physical evidence is unpreserved and we decline to review it in the interest of justice.   As an alternative holding, we also reject it on the merits.

 After sufficient inquiry, the court properly determined that a juror's innocuous, one-word compliment to a police witness in a courthouse elevator did not render the juror grossly unqualified.   The juror revealed that he meant he had been impressed by the witness's “delivery,” and that he did not realize he had violated the court's instructions concerning jury behavior.   The juror unequivocally stated that he had formed no opinion, could remain impartial, and would follow the court's instructions thereafter (see People v. Taveras, 224 A.D.2d 461, 462, 638 N.Y.S.2d 117 [1996], lv. denied 88 N.Y.2d 970, 647 N.Y.S.2d 724, 670 N.E.2d 1356 [1996] ).