                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: July 28, 2016                      107036
________________________________

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

CLARENCE GREEN,
                    Appellant.
________________________________


Calendar Date:    June 1, 2016

Before:   Peters, P.J., Garry, Rose, Mulvey and Aarons, JJ.

                              __________


     Danielle Neroni Reilly, Albany, for appellant.

      P. David Soares, District Attorney, Albany (Brittany L.
Grome of counsel), for respondent.

                              __________


Garry, J.

      Appeal from a judgment of the Supreme Court (Breslin, J.),
rendered July 22, 2014 in Albany County, upon a verdict
convicting defendant of the crimes of robbery in the third degree
and grand larceny in the fourth degree.

      Defendant was indicted for robbery in the third degree and
grand larceny in the fourth degree stemming from an incident in
which he was alleged to have forcibly stolen a deposit bag
containing $9,000 from a liquor store manager (hereinafter the
victim) in the City of Albany. Following a jury trial, defendant
was found guilty of both counts of the indictment and was
thereafter sentenced to an aggregate prison term of 3½ to 7
years. Defendant appeals.
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      Defendant's contention that the evidence was legally
insufficient to establish the use of force element of his
conviction for robbery in the third degree is unpreserved for our
review as defense counsel's motion for a trial order of dismissal
was not "specifically directed at the alleged error" (People v
Gray, 86 NY2d 10, 19 [1995] [internal quotation marks and
citation omitted]; see People v Stevens, 87 AD3d 754, 754 n
[2011], lvs denied 18 NY3d 861 [2011]). However, as defendant
was not required to preserve his further contention that the
verdict was against the weight of the evidence, under that
review, we evaluate the evidence to ensure that each of the
elements of the charged offenses were established (see People v
Rojas, 121 AD3d 1427, 1428 [2014], lv denied 24 NY3d 1221 [2015];
People v Gaudiosi, 110 AD3d 1347, 1348 [2013], lv denied 22 NY3d
1040 [2013]).

      At trial, the People elicited testimony from the victim,
among other witnesses. The victim testified that he was on his
way to make a bank deposit while in possession of a plastic bag
containing $9,000 when defendant pulled the bag off his wrist,
"ripp[ing] the handles off [his] hand forcefully," and fled. The
victim then chased after defendant and ultimately cornered him in
a nearby parking lot, blocking his only route of escape.
Defendant and the victim then "ran into each other" as the victim
attempted to dislodge the bag from defendant's grasp and
defendant attempted to push the victim out of the way.
Ultimately, the victim was able to recover the bag and defendant
fled the parking lot. Several other witnesses observed the
victim chasing after defendant while calling for help. One of
these witnesses testified that he had been working in an office
building next to the parking lot and pursued defendant after
hearing the victim calling for help. After a short chase, this
witness tackled and restrained defendant until police arrived.
Another witness who had observed the pursuit identified defendant
as the individual that had fled and testified that he assisted in
restraining defendant. The arresting police officer testified
that he arrived on the scene to find defendant detained by two
individuals and subsequently took defendant into custody.
Contrary to defendant's contention, the evidence established that
defendant "forcibly [stole] property" (Penal Law § 160.05). The
victim's testimony that defendant forcefully ripped the bag from
                              -3-                107036

his hands, causing the handles to rip, and pushed the victim away
as the victim sought to retrieve the bag satisfied the forcible
stealing element of the crime (see Penal Law § 160.00; People v
Barksdale, 50 AD3d 400, 401 [2008], lv denied 10 NY3d 932 [2008];
People v Rumrill, 40 AD3d 1273, 1275 [2007], lv denied 9 NY3d 926
[2007]; People v Jones, 4 AD3d 622, 623-624 [2004], lv denied 2
NY3d 801 [2004]). Upon review of the record, we are satisfied
that the verdict was in accord with the weight of the evidence.

      Defendant's contention that Supreme Court erred in refusing
to suppress certain statements that he made to the police while
in custody because he did not knowingly and intelligently waive
his Miranda rights is without merit. The testimony and a booking
room videotape admitted into evidence at the Huntley hearing
established that a detective read defendant his Miranda rights
from a preprinted card prior to initiating any questioning. When
asked if he understood his rights, defendant answered in the
affirmative and, immediately thereafter, provided detailed
responses to questions regarding his involvement in the incident.
Accordingly, defendant's unambiguous acknowledgment that he
understood his rights and subsequent participation in answering
the detectives' questions constituted an implicit waiver of his
Miranda rights (see People v Sirno, 76 NY2d 967, 968 [1990];
People v Fiorino, 130 AD3d 1376, 1379-1380 [2015], lv denied 26
NY3d 1087 [2015]; People v Jaeger, 96 AD3d 1172, 1173 [2012], lv
denied 19 NY3d 997 [2012]), and Supreme Court did not err in
denying defendant's motion to suppress his statements.

      Defendant further contends that Supreme Court erred in its
response to defendant's Batson challenge to the People's use of a
peremptory challenge during jury selection. When a Batson
challenge is raised in response to an alleged use of a peremptory
challenge with discriminatory intent, the court must utilize a
three-step framework to resolve the challenge. "At step one,
'the moving party bears the burden of establishing a prima facie
case of discrimination in the exercise of peremptory challenges'"
(People v Hecker, 15 NY3d 625, 634 [2010], quoting People v
Smocum, 99 NY2d 418, 420 [2003]). If the court finds that the
moving party has demonstrated a prima facie case, then the burden
shifts "to the nonmoving party to offer a facially neutral
explanation for each suspect challenge" to overcome the inference
                              -4-                107036

of discrimination (People v Hecker, 15 NY3d at 634; see People v
Smocum, 99 NY2d at 422; People v Jones, 136 AD3d 1153, 1158
[2016], lv denied 27 NY3d 1000 [2016]). If the nonmoving party
offers such an explanation, "the burden shifts back to the moving
party to prove purposeful discrimination and the trial court must
determine whether the proffered reasons are pretextual" (People v
Hecker, 15 NY3d at 634-35 [internal quotation marks and citations
omitted]; accord People v Jones, 136 AD3d at 1158).

      Here, defendant lodged a Batson objection after the People
used peremptory challenges to strike the only two black
prospective jurors in one jury panel, identified as juror Nos. 10
and 11, and noted that the People had also struck another
potential black juror from a prior panel.1 In ruling on the
challenge, Supreme Court observed that a black juror in a prior
panel had been seated and found that, "[f]rom [the court's] own
basis . . . I can think of many reasons race neutral I would
excuse [prospective juror No. 10]." The court required the
People to set forth a race-neutral explanation with respect to
prospective juror No. 11. The prosecutor explained that he did
not want a football player on his jury and that prospective juror
No. 11 had been "very glib in his responses."2 In response,
defendant stated that the explanation was pretextual; the court
disagreed, finding the prosecutor's explanation acceptable on the
ground that the voir dire exchange with prospective juror No. 11
"almost create[d] an animosity between [the prosecutor] and the
juror."



    1
        Defendant did not – and does not now – raise any
challenge to the People's use of a peremptory challenge on this
prospective juror.
    2
        Prospective juror No. 11 disclosed during voir dire that
he was a collegiate football player. The prosecutor specifically
noted concern over a particular exchange with the prospective
juror during which, in response to the prosecutor's question
about whether he would make a good juror, prospective juror No.
11 stated, "You scouting me so –" to which the prosecutor
interjected, "We are. We are."
                              -5-                107036

      With respect to prospective juror No. 10, we reject
defendant's contention that Supreme Court improperly condensed
the first two steps of its Batson inquiry; rather, defendant
failed to meet his prima facie burden at the first step of the
inquiry and, thus, the second step was not reached. The court's
statement that there were possible race-neutral reasons for the
peremptory challenge of prospective juror No. 10 did not render
moot the issue of whether defendant had established a prima facie
case. The court was permitted to consider "the totality of the
relevant facts" bearing on whether defendant had established an
inference of discriminatory intent (People v Hecker, 15 NY3d at
651 [internal quotation marks and citation omitted]; see Batson v
Kentucky, 476 US 79, 96-97 [1986]). The court did not find, nor
did the People volunteer, any specific race-neutral justification
for the peremptory challenge that would have then required the
court to proceed to the next step of the analysis (see People v
Smocum, 99 NY2d at 423; People v Payne, 88 NY2d 172, 182 [1996]).
Moreover, in support of his Batson objection, defense counsel
merely argued that three black prospective jurors had been
challenged, and now argues that this established an inference of
discriminatory motive. Although this first step is "not intended
to be onerous[,] . . . purely numerical or statistical arguments
are rarely conclusive in the absence of other facts or
circumstances to give rise to an inference of discrimination"
(People v Hecker, 15 NY3d at 651 [internal quotation marks and
citation omitted]). As defendant did not raise any other facts
supporting an inference of discrimination (compare People v
Hurdle, 99 AD3d 943, 944 [2012]), we find no error in the
determination that defendant failed to meet his prima facie
burden (see People v Jenkins, 84 NY2d 1001, 1003 [1994]; People v
Morris, 140 AD3d 1472, ___, 2016 NY Slip Op 04979, *2-3; People v
Fryar, 29 AD3d 919, 920-921 [2006], lv denied 7 NY3d 812 [2006];
People v Vidal, 212 AD2d 553, 554 [1995], appeal denied 85 NY2d
981 [1995]).

      As to prospective juror No. 11, defendant asserts that
Supreme Court erred in determining that the People proffered a
nonpretextual justification for the challenge. We disagree. The
People's justification that prospective juror No. 11 was "glib"
in his responses provided "a facially neutral explanation for
[the] suspect challenge" (People v Hecker, 15 NY3d at 634)
                              -6-                107036

premised on "a 'rationale [with] some basis in accepted trial
strategy'" (id. at 658, quoting Miller-El v Cockrell, 537 US 322,
339 [2003]). In response to this explanation, defense counsel
merely stated, in a conclusory fashion, that the justification
was pretextual. According appropriate deference to the court's
determination (see People v Hecker, 15 NY3d at 656-657; People v
Knowles, 79 AD3d 16, 21 [2010], lv denied 16 NY3d 896 [2011]), we
find no error in its finding that the proffered justification was
valid and nonpretextual (see People v Wells, 7 NY3d 51, 58
[2006]; People v English, 119 AD3d 706, 706 [2014], lv denied 24
NY3d 1043 [2014]; People v Lee, 80 AD3d 877, 879-880 [2011], lvs
denied 16 NY3d 832, 833, 834 [2011]; People v Morgan, 24 AD3d
950, 952 [2005], lv denied 6 NY3d 815 [2006]).

      Next, defendant argues that Supreme Court erroneously
denied his requests to submit a petit larceny charge as a lesser
included offense for the jury's consideration. A defendant is
entitled to a lesser included offense charge when he or she
establishes "that it is impossible to commit the greater crime
without necessarily committing the lesser and there [is] a
reasonable view of the evidence which would support a finding
that the defendant committed only the lesser offense" (People v
Barney, 99 NY2d 367, 371 [2003]; see People v Baker, 123 AD3d
1378, 1380 [2014]; People v Rumrill, 40 AD3d 1273, 1275 [2007],
lv denied 9 NY3d 926 [2007]). Here, the first prong is
indisputably met; petit larceny, which is committed when a
defendant "steals property" (Penal Law § 155.25), is a lesser
included offense of robbery in the third degree (see People v
Rivera, 101 AD3d 1478, 1481 [2012]). However, even when seen in
the light most favorable to defendant (see People v Bowman, 79
AD3d 1368, 1370 [2010], lv denied 16 NY3d 828 [2011]), there was
no reasonable view of the evidence that would suggest that
defendant stole the victim's property without the use of force so
as to justify submission of the lesser charge to the jury (see
People v Wilkerson, 140 AD3d 1297, ___, 33 NYS3d 523, 530 [2016];
People v Green, 134 AD3d 418, 418 [2015], lv denied 27 NY3d 965
[2016]). As previously discussed, the evidence showed that
defendant forcibly pulled the bag from the victim's hands,
causing the handles to rip off of the bag, and, thereafter,
tussled with the victim in an effort to retain possession of the
bag. Accordingly, we find no error.
                              -7-                107036

      Supreme Court properly accepted defendant's prior Florida
conviction for uttering forged instruments (see Fla Stat Ann
§ 831.02) as a predicate felony for purposes of sentencing
defendant as a second felony offender. In doing so, the court
determined that the Florida crime was the equivalent of the New
York crime of criminal possession of a forged instrument in the
second degree, a class D felony (see Penal Law § 170.25). In
applying the "strict equivalency" test for determining if a
foreign conviction may be utilized to adjudicate a defendant a
second felony offender, a court must determine whether the
foreign conviction "include[s] all the essential elements of a
New York felony" (People v Ramos, 19 NY3d 417, 419 [2012]). This
analysis requires the court to engage in "'a comparison of the
crimes' elements as they are respectively defined in the foreign
and New York penal statutes,' without regard to the charging
instruments" (People v Parker, 121 AD3d 1190, 1191 [2014],
quoting People v Muniz, 74 NY2d 464, 467-468 [1989]). Upon our
review, we agree with the court's determination that the two
crimes share essential elements and were sufficiently equivalent
to permit the use of the Florida crime as a predicate felony.
Contrary to defendant's contention, the fact that the Florida
statute requires both uttering and publication of an instrument –
whereas Penal Law § 170.25 requires merely uttering – does not
alter this conclusion. Defendant does not identify, nor are we
able to perceive, any set of circumstances in which an individual
could violate the Florida statute without also violating the New
York statute, and the fact that "it is possible to violate the
[New York] statute without violating the [Florida] statute . . .
is not a sufficient basis to preclude a predicate felony
determination" (People v De Gaspard, 170 AD2d 835, 839 [1991], lv
denied 77 NY2d 994 [1991]). Thus, the court did not err in
sentencing defendant as a second felony offender on the basis of
the prior Florida conviction (see People v Grubbs, 48 AD3d 1186,
1186 [2008], lv denied 10 NY3d 811 [2008]; People v De Gaspard,
170 AD2d at 839).

      Finally, in the absence of any objection, defendant's
various claims of prosecutorial misconduct are unpreserved for
our review, and, in any event, "the record as a whole fails to
disclose that the prosecutor engaged in a flagrant and pervasive
pattern of prosecutorial misconduct so as to deprive defendant of
                              -8-                  107036

a fair trial" (People v Fiorino, 130 AD3d 1376, 1380 [2015]
[internal quotation marks and citations omitted], lv denied 26
NY3d 1087 [2015]; see People v Winchell, 129 AD3d 1309, 1313
[2015], lv denied 26 NY3d 973 [2015]).

     Peters, P.J., Rose, Mulvey and Aarons, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
