        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1209
KA 12-01919
PRESENT: SMITH, J.P., CENTRA, FAHEY, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

AMILCAR RAMOS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

AMILCAR RAMOS, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered July 26, 2012. The judgment convicted
defendant, upon a jury verdict, of burglary in the first degree (two
counts) and robbery in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of robbery in the first degree (Penal Law § 160.15 [4]) and
two counts of burglary in the first degree (§ 140.30 [2], [4]),
defendant contends that Supreme Court did not follow the proper Batson
procedures in denying his Batson challenge and that he was deprived of
a fair trial by the prosecutor’s allegedly race-based peremptory
challenges to three African-American prospective jurors and one
Hispanic prospective juror. We reject defendant’s contention with
respect to the Batson procedures. Although the court initially denied
the Batson challenge before defense counsel had an opportunity to
argue that the prosecutor’s stated reasons were pretextual, defense
counsel nevertheless placed on the record why he believed the reasons
were pretextual, whereupon the court again denied the motion. In any
event, the court, by initially rejecting the challenge prematurely,
can be said to have implicitly determined that the prosecutor’s
proffered race-neutral reasons were not pretextual (see People v
Carmack, 34 AD3d 1299, 1301, lv denied 8 NY3d 879). We likewise
reject defendant’s contention that he was denied a fair trial based on
the prosecutor’s use of peremptory challenges. In response to defense
counsel’s Batson challenge, the prosecutor stated that two of the
African-American prospective jurors expressed dissatisfaction with the
manner in which the police investigated crimes committed against them,
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                                                         KA 12-01919

while the third answered “yes and no” when asked whether he was
satisfied with the police handling of a crime reported by his
girlfriend. With respect to the Hispanic prospective juror, the
prosecutor stated that he indicated that he was inclined to
“speculate” rather than base his decision on the facts presented. We
note that the prosecutor also struck a Caucasian prospective juror who
stated that a relative did not “get a fair shake” by the prosecution
in a prior case, and we conclude that the court did not abuse its
discretion in determining that the prosecutor’s explanations for his
peremptory challenges were not pretextual (see People v Farrare, 118
AD3d 1477, 1477-1478, lv denied 23 NY3d 1061).

     Viewing the evidence in the light most favorable to the People
(see People v Williams, 84 NY2d 925, 926), we reject defendant’s
further contention that the evidence is legally insufficient to
support the conviction (see generally People v Bleakley, 69 NY2d 490,
495). Two of the victims identified defendant at trial as one of the
two perpetrators and, although defendant challenged the credibility
and reliability of those witnesses, we must assume the truth of their
testimony in the context of a challenge to the sufficiency of the
evidence. Viewing the evidence in light of the elements of the crimes
as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
likewise conclude that the verdict is not against the weight of the
evidence (see Bleakley, 69 NY2d at 495). We note that “resolution of
issues of credibility, as well as the weight to be accorded to the
evidence presented, are primarily questions to be determined by the
jury” (People v Witherspoon, 66 AD3d 1456, 1457, lv denied 13 NY3d 942
[internal quotation marks omitted]), and we perceive no reason to
disturb the jury’s resolution of those issues in this case.

     We also note that defendant was stopped by the police while
driving a vehicle matching the description of the getaway vehicle,
i.e, a white Cadillac CTS with large chrome rims and a dark-colored
roof. In addition, three calls were made to defendant’s cell phone
from the cell phone stolen from one of the victims. Those calls were
made between 12:57 p.m. and 1:44 p.m. on the day in question, which is
when the charged crimes were taking place, and the People presented
evidence that defendant’s cell phone was “pinging” a cell phone tower
close to the crime scene at or about that same time. Under the
circumstances, even assuming, arguendo, that a different verdict would
not have been unreasonable, we conclude that it cannot be said that
the jury failed to give the evidence the weight it should be accorded
(see generally Bleakley, 69 NY2d at 495; People v Gay, 105 AD3d 1427,
1427-1428).

     We agree with defendant that the court erred in allowing one of
the victims to offer voice identification testimony at trial. Prior
to trial, the prosecutor had the victim listen to recordings of
telephone calls allegedly made by defendant from jail, and the victim
identified the voice of the person making the calls as belonging to
defendant. The victim offered similar testimony at trial over
defendant’s objection. Because the People failed to provide defendant
with notice of the pretrial voice identification procedure as required
by CPL 710.30 (1) (see generally People v Muneton, 302 AD2d 246, 246,
                                 -3-                          1209
                                                         KA 12-01919

lv denied 100 NY2d 541), the voice identification testimony was
admissible at trial only if the identification was merely confirmatory
as a matter of law (see People v Tas, 51 NY2d 915, 916; People v
Brito, 11 AD3d 933, 934, appeal dismissed 5 NY3d 825). Contrary to
the People’s contention, the victim’s identification of defendant’s
voice was not merely confirmatory inasmuch as the victim acknowledged
that, although he had heard defendant speak a number of times in the
neighborhood, he and defendant had never actually spoken to each
other. We thus conclude that the People did not establish as a matter
of law that the victim was so familiar with defendant’s voice that
“the identification at issue could not be the product of undue
suggestiveness” (People v Boyer, 6 NY3d 427, 431; see People v
Rodriguez, 79 NY2d 445, 449-450).

     We nevertheless conclude that the error is harmless. Defendant
did not make any incriminating statements in the jail phone call, and,
in any event, another trial witness, a deputy sheriff, identified
without objection defendant’s voice from the same recordings and thus
the victim’s improper voice identification testimony was cumulative.
We conclude that there is “no reasonable possibility that the error
might have contributed to defendant’s conviction” (People v Crimmins,
36 NY2d 230, 237; see People v Boop, 118 AD3d 1273, 1273).

     We have reviewed the remaining contentions in defendant’s main
and pro se supplemental briefs and conclude that they do not require
modification or reversal of the judgment.




Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
