The People, etc., respondent, v. Dwayne Dailey, appellant.

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

The People, etc., respondent, v. Dwayne Dailey, appellant.

2009–07318 (Ind.No. 1739/08)

Decided: July 12, 2011

DANIEL D. ANGIOLILLO, J.P. THOMAS A. DICKERSON L. PRISCILLA HALL SHERI S. ROMAN, JJ. Mark Diamond, New York, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Laurie K. Gibbons of counsel), for respondent.

Argued—June 16, 2011


Appeal by the defendant from a judgment of the County Court, Nassau County (Sullivan, J.), rendered October 7, 2009, convicting him of murder in the second degree, attempted murder in the second degree (three counts), assault in the first degree (three counts), and criminal possession of a weapon in the second degree (four counts), upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (McCormack, J.) pursuant to a stipulation in lieu of motions, of the suppression of identification testimony.

ORDERED that the judgment is affirmed.

The defendant's contention that the photo arrays from which a number of witnesses selected his picture were unduly suggestive is without merit.   There were no characteristics of the defendant's picture that made it stand out in any way from the others in the arrays so as to draw a viewer's attention to it and indicate that the police had “made a particular selection” (People v. Curtis, 71 AD3d 1044, 1045;  see People v. Ferguson, 55 AD3d 926;  People v. Wright, 297 A.D.2d 391).   Accordingly, the hearing court properly denied suppression of identification testimony.

Contrary to the defendant's contention, the trial court correctly denied his motions pursuant to CPL 270.10 challenging three jury panels from which the jury was selected.   The written motions that the defendant submitted on this issue were patently deficient because they failed to allege facts demonstrating that the claimed underrepresentation of African–Americans on the jury panel was the result of systematic exclusion (see People v. Branch, 244 A.D.2d 562).   The defendant also contends that the trial court erred in denying his Batson challenges (see Batson v. Kentucky, 476 U.S. 79) with respect to the prosecutor's use of peremptory challenges to exclude African–Americans and a Hispanic from the jury.   The prosecutor provided race-neutral explanations for excluding each of the prospective jurors at issue (id. at 97).   The trial court's determination that these explanations were nonpretextual is entitled to deference on appeal and should not be disturbed where, as here, it is supported by the record (see People v. Hernandez, 75 N.Y.2d 350, 356–357;  People v. Waters, 81 AD3d 673).

The defendant's contention regarding Penal Law § 265.03(3) is unpreserved for appellate review (see CPL 470.05[2] ), and we decline to reach it in the exercise of our interest of justice jurisdiction (see CPL 470.15[6] ).

The defendant's contention that the accomplice testimony adduced at trial was insufficiently corroborated by independent evidence is without merit (see CPL 60.22[1];  People v. Breland, 83 N.Y.2d 286, 292;  People v. Goodson, 35 AD3d 760, 761).   The Criminal Procedure Law requires only that the corroborative evidence “tend[s] to connect” the defendant with the commission of the relevant offense (CPL 60.22[1] ).   Under that standard, “[a]ll that is necessary is to connect the defendant with the crime in such a way that the jury may be reasonably satisfied that the accomplice is telling the truth” (People v. Daniels, 37 N.Y.2d 624, 630).   That standard was met in this case.   Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).

The defendant's remaining contentions are without merit.



Matthew G. Kiernan

Clerk of the Court

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