                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 12, 2015                    105524
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

ERIC BODDIE,
                    Appellant.
________________________________


Calendar Date:   January 16, 2015

Before:   Lahtinen, J.P., Egan Jr., Lynch and Devine, JJ.

                             __________


     Marcy I. Flores, Warrensburg, for appellant.

      Robert M. Carney, District Attorney, Schenectady (Gerald A.
Dwyer of counsel), for respondent.

                             __________


Devine, J.

      Appeal from a judgment of the Supreme Court (Milano, J.),
rendered August 29, 2012 in Schenectady County, upon a verdict
convicting defendant of the crime of assault in the second
degree.

      Defendant was indicted on two counts of burglary in the
second degree and one count of assault in the second degree
following his alleged involvement in a bar fight that occurred in
the City of Schenectady, Schenectady County, in which defendant
and his codefendant were accused of attacking the bar owner with
a bar stool and stealing bottles of liquor and money from a
register. Following a trial, the jury found defendant guilty of
assault in the second degree. Supreme Court sentenced defendant,
as a second violent felony offender, to seven years in prison,
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followed by five years of postrelease supervision.   Defendant
appeals.

      We first address defendant's argument that the grand jury's
exposure to inadmissible hearsay so tainted the proceedings that
dismissal of the indictment is required. Dismissal of an
indictment is an extreme remedy that is limited to "'those
instances where prosecutorial wrongdoing, fraudulent conduct or
errors potentially prejudice the ultimate decision reached by the
[g]rand [j]ury'" (People v Nash, 69 AD3d 1113, 1114 [2010], lv
denied 15 NY3d 754 [2010], quoting People v Huston, 88 NY2d 400,
409 [1996]; accord People v Moffitt, 20 AD3d 687, 688 [2005], lv
denied 5 NY3d 854 [2005]). Defendant's challenge relates to a
recording of the bar's security camera footage that depicted the
attack on the victim. Specifically, the victim's son made a
video recording of a monitor as it played the surveillance
footage, during which recording he and another person can be
heard making several comments regarding the severity of the
attacks upon the victim. The People explained to Supreme Court
that they were unable to mute the video as it was being played
during grand jury proceedings, and that the prosecutor provided
an instruction to disregard the audio component of the video
recording. Thus, it is apparent that the People did not
intentionally present inadmissible hearsay or otherwise engage in
an "over-all pattern of bias and misconduct" (People v Huston, 88
NY2d at 408; see People v Tatro, 53 AD3d 781, 784 [2008], lv
denied 11 NY3d 835 [2008]). Moreover, in light of the ample
evidence supporting the assault in the second degree charge
against defendant, we find no basis to determine that the hearsay
evidence rendered the indictment defective (see People v Kidwell,
88 AD3d 1060, 1062 [2011]).

      Next, we consider defendant's challenges to the manner in
which Supreme Court conducted jury selection. First, defendant
argues that Supreme Court erred in denying his Batson objection
after the People exercised its final peremptory challenge to
strike a black juror. It is well settled that defendant bore the
initial burden of demonstrating "a prima facie case of purposeful
discrimination" by the People (People v Knowles, 79 AD3d 16, 20
[2010], lv denied 16 NY3d 896 [2011]). While defendant
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complained that the jury had an insufficient number of black
jurors and could not discern any legitimate reason for the
People's exclusion of the juror at issue, the court disagreed,
stating that the People had previously agreed to seat another
black juror, while defendant had exercised a peremptory challenge
against a second black juror. The court continued that, inasmuch
as there was "no pattern" of discriminatory juror challenges by
the People, defendant had failed to satisfy his burden of making
a prima facie demonstration that the People's peremptory
challenge was racially motivated. As the record demonstrates
that the People's final peremptory challenge was made in good
faith and without racial bias, Supreme Court properly found that
no Batson violation had occurred.

      Defendant also maintains that Supreme Court erred in
denying his challenge of a juror for cause after she expressed
doubt as to her ability to be fair and impartial if defendant
chose not to testify at trial. At the outset, defendant failed
to preserve this issue by challenging the prospective juror on
the specific ground that he now raises in this appeal (see People
v Hoffmann, 122 AD3d 945, 945 [2014]). Nonetheless, were this
issue before us, we would find that defendant's argument is
without merit. When a prospective juror indicates that he or she
may not be able to remain impartial in the event the defendant
decides not to testify, the potential juror may be selected to
serve only if the court elicits an unequivocal guarantee that he
or she will follow the court's instructions regarding the law and
render an impartial verdict (see People v Bludson, 97 NY2d 644,
645-646 [2001]; People v Russell, 16 AD3d 776, 778 [2005], lv
denied 5 NY3d 809 [2005]). Having eliminated its doubts about
the juror's ability to "reach a verdict based entirely upon the
court's instructions on the law," including defendant's right not
to take the stand during trial (People v Bludson, 97 NY2d at
646), we would find, if this issue were preserved, that County
Court properly denied defendant's for cause challenge.

      As to defendant's claim that his motion to suppress the
victim's identification testimony was erroneously denied
following a pretrial hearing and that he should have been
afforded a Wade hearing, we disagree. A Judicial Hearing Officer
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heard testimony from the victim that defendant had come into the
bar several days a week for nearly four months prior to the
assault, during which visits defendant and the victim engaged in
conversation and became acquainted. The victim testified that,
in the weeks leading up to the attack, defendant had become
increasingly disruptive and, just prior to the assault, the
victim denied defendant entry into the bar. This evidence
supported the Judicial Hearing Officer's determination that the
victim and defendant knew each other prior to the assault and
that the victim's identification of defendant following the
incident was not the product of undue police suggestion, thereby
rendering a Wade hearing unnecessary (see People v Allah, 57 AD3d
1115, 1116-1117 [2008], lv denied 12 NY3d 780 [2009]; People v
Carter, 57 AD3d 1017, 1017-1018 [2008], lvs denied 12 NY3d 781
[2009]).

      Nor do we agree with defendant's claim that Supreme Court
erred when it refused to charge the jury with the lesser included
offense of assault in the third degree. Even when the trial
evidence – which included testimony and video footage
demonstrating that defendant attacked the victim by striking him
with a wooden bar stool – is viewed in a light most favorable to
defendant, the jury could not have reasonably concluded that
defendant "committed the[] lesser offense[] but not the greater"
(People v Brown, 100 AD3d 1035, 1037 [2012], lv denied 20 NY3d
1009 [2013]; see People v Rivera, 23 NY3d 112, 120 [2014]).

      Finally, defendant's nonspecific motion to dismiss at the
end of the People's proof, which was not renewed at the close of
evidence, failed to preserve his claim that the conviction was
not supported by legally sufficient evidence (see People v Gray,
86 NY2d 10, 19 [1995]), nor has he made a weight of the evidence
claim on appeal upon which we would necessarily determine whether
"each element of the crime[] was proven beyond a reasonable
doubt" (People v Rodriguez, 121 AD3d 1435, 1436 [2014], lv denied
___ NY3d ___ [Jan. 24, 2015]; see People v Danielson, 9 NY3d 342,
349 [2007]). Had the issue been preserved, we would find that
the evidence at trial demonstrated beyond a reasonable doubt that
defendant physically injured the victim when he struck him down
with a wooden stool (see Penal Law § 120.05 [2]; People v
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Griffin, 24 AD3d 972, 973 [2005], lv denied 6 NY3d 834 [2006]).

      Defendant's remaining arguments have been considered and
found to be lacking in merit.

     Lahtinen, J.P., Egan Jr. and Lynch, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
