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

1379
KA 12-01598
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL ROSEBORO, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (John L.
Michalski, A.J.), rendered June 26, 2012. The judgment convicted
defendant, upon a jury verdict, of burglary in the first degree (two
counts), robbery in the first degree (two counts) and sexual abuse in
the first degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, two counts of burglary in the
first degree (Penal Law § 140.30 [1], [4]) and two counts of robbery
in the first degree (§ 160.15 [2], [4]) arising from his participation
in a home invasion robbery. We reject defendant’s contention that
Supreme Court erred in refusing to suppress physical evidence, his
statements to the police, and identification testimony as the fruits
of an illegal stop. The record of the suppression hearing supports
the court’s determination that the police officers’ pursuit, stop, and
detention of defendant were supported by a reasonable suspicion that
defendant had committed a crime (see People v Martinez, 80 NY2d 444,
446; People v Bolden, 109 AD3d 1170, 1172, lv denied 22 NY3d 1039).
The officers’ questions following the stop, concerning the location of
the gun and the presence of sharp objects in defendant’s pockets, did
not constitute interrogation (see People v Chestnut, 51 NY2d 14, 22-
23, cert denied 449 US 1018), and thus the court properly refused to
suppress defendant’s responses to those questions. The court also
properly refused to suppress defendant’s statement to a police officer
at the jail, which was spontaneous and not the product of
interrogation (see People v Lynes, 49 NY2d 286, 294-295). The court
also properly determined that the showup, conducted in temporal and
geographic proximity to the crime, was reasonable under the
circumstances (see People v Woodard, 83 AD3d 1440, 1441, lv denied 17
                                 -2-                          1379
                                                         KA 12-01598

NY3d 803; People v Delarosa, 28 AD3d 1186, 1186-1187, lv denied 7 NY3d
811). The composition of the photo array was not unduly suggestive,
inasmuch as it did not “create a substantial likelihood that . . .
defendant would be singled out for identification” (People v Chipp, 75
NY2d 327, 336, cert denied 498 US 833), nor was the photo array unduly
suggestive by reason of the fact that it was viewed by the same
witness who identified defendant in the showup (see People v Brown,
254 AD2d 781, 782, lv denied 92 NY2d 1029).

     We reject defendant’s further contention that he was denied due
process as a result of the court’s rulings. The court properly denied
defendant’s challenge for cause to a prospective juror whose parents
had been victims of a home invasion robbery, inasmuch as that
prospective juror “never expressed any doubt concerning [her] ability
to be fair and impartial” (People v Odum, 67 AD3d 1465, 1465, lv
denied 14 NY3d 804, reconsideration denied 15 NY3d 755, cert denied
___ US ___, 131 S Ct 326). The court’s Sandoval ruling did not
constitute an abuse of discretion (see People v Hawkins, 48 AD3d 1279,
1281, affd 11 NY3d 484), nor did the court abuse its discretion in
directing the readback of testimony by two court reporters in the
format of a role play, with one court reporter reading back questions
and the second reading back answers (see generally People v Smith, 21
AD3d 1277, 1277-1278, lv denied 7 NY3d 763). That format did not
create the risk of conveying to the jury that the court favored either
party (see People v Alcide, 21 NY3d 687, 695).

     Defendant failed to preserve for review his challenge to the
sufficiency of the evidence (see People v Hines, 97 NY2d 56, 61, rearg
denied 97 NY2d 678). 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 conclude that the verdict is not against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495).
Defendant also failed to preserve his contention that he was denied a
fair trial by prosecutorial misconduct (see People v Ross, 118 AD3d
1413, 1416-1417, lv denied 24 NY3d 964), and we decline to exercise
our power to review that contention as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]). Finally, the sentence
is not unduly harsh or severe.




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