Opinion
16210 554/10
11-24-2015
The PEOPLE of the State of New York, Respondent, v. Shawn NELSON, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Frances A. Gallagher of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Frances A. Gallagher of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), for respondent.
Opinion
Judgment, Supreme Court, New York County (Cassandra M. Mullen, J.), rendered April 4, 2011, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 16 years to life, unanimously affirmed.
The court properly denied defense counsel's challenge for cause to a prospective juror, a physician who at first indicated that he might share his expertise regarding emergency room medical records with other members of the jury. The panelist's subsequent assurance to the court that he would do his best to adhere to the court's instructions was sufficiently unequivocal to justify the denial of the challenge (see People v. LaValle, 3 N.Y.3d 88, 104, 783 N.Y.S.2d 485, 817 N.E.2d 341 2004; People v. Arnold, 96 N.Y.2d 358, 729 N.Y.S.2d 51, 753 N.E.2d 846 2001 ).
The admission on the People's direct case of evidence that defendant refused to give his name in response to pedigree questioning, refused to be fingerprinted, and was agitated upon being arrested did not violate his constitutional right against self-incrimination (see People v. Rodney, 85 N.Y.2d 289, 624 N.Y.S.2d 95, 648 N.E.2d 471 1995; People v. Johnson, 253 A.D.2d 702, 679 N.Y.S.2d 361 1st Dept.1998, lv. denied 92 N.Y.2d 1034, 684 N.Y.S.2d 499, 707 N.E.2d 454 1998 ). None of this behavior can be viewed as postarrest silence, and, unlike the ambiguous smile in People v. Basora, 75 N.Y.2d 992, 994, 557 N.Y.S.2d 263, 556 N.E.2d 1070 (1990) it was sufficiently probative of defendant's consciousness of guilt. In any event, in light of the overwhelming evidence of guilt, any error in the receipt of this evidence was harmless under the standards for both constitutional and nonconstitutional error (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 1975 ).
Defendant did not preserve his claims that he was constructively absent (although physically present) during a portion of the suppression hearing, and that certain identification testimony should have been excluded, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal.
The court properly adjudicated defendant a persistent violent felony offender. He claims that one of the predicate felony convictions relied on to enhance his sentence was unconstitutionally obtained because the court, which imposed a sentence including postrelease supervision, did not inform him of that aspect of his sentence during the plea allocution (see People v. Catu, 4 N.Y.3d 242, 792 N.Y.S.2d 887, 825 N.E.2d 1081 2005; People v. Smith, 132 A.D.3d 511, 17 N.Y.S.3d 701 1st Dept.2015 ). Because the plea minutes have been irretrievably lost, defendant attempts to establish the deficiency based on the sentencing minutes, other related court appearances, and on all the surrounding circumstances. However, we find that defendant has failed to meet his burden “to allege and prove the facts underlying the claim that the conviction was unconstitutionally obtained” (People v. Harris, 61 N.Y.2d 9, 15, 471 N.Y.S.2d 61, 459 N.E.2d 170 1983 ), and that, given the lack of information to support defendant's assertion, there is no reason to order a hearing.