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People v. Jiles

Supreme Court of New York, Fourth Department

December 22, 2017





          Whalen, J.

         Appeal from a judgment of the Monroe County Court (James J. Piampiano, J.), rendered December 6, 2012. The judgment convicted defendant, upon a jury verdict, of murder in the second degree (two counts), robbery in the first degree (two counts), robbery in the third degree (two counts) and criminal possession of a weapon in the second degree (two counts).

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

         Opinion by Whalen, P.J.: When citizens go about their lives with cell phones turned on, the phones can electronically register with the nearest cell tower every few seconds whether or not the phones are actively in use, and the business records of service providers can therefore contain information about the location of phones and their users at specific dates and times as the users travel the highways and byways of our state and nation (see generally Zanders v Indiana, 73 N.E.3d 178, 182 [Ind 2017]; New Jersey v Earls, 214 N.J. 564, 576-577, 70 A.3d 630, 637 [2013]). In this case, the People used historical cell site location information from service provider records to place defendant in the vicinity of a murder scene, and defendant unsuccessfully moved prior to trial to have the location information suppressed, claiming that the acquisition of that information was a search requiring a warrant supported by probable cause under both the Fourth Amendment to the United States Constitution and article I, § 12 of the New York Constitution. For the reasons that follow, we conclude that a warrant was not required under the circumstances here. We also reject defendant's further contention pursuant to Batson v Kentucky (476 U.S. 79');">476 U.S. 79 [1986]). Accordingly, we conclude that the judgment of conviction should be affirmed.


         Defendant's conviction arises from a robbery in which he and two unidentified accomplices held four men at gunpoint in an apartment and took money or property from at least two of the men. Another man came to the apartment while the robbery was in progress and refused to be tied up, and a struggle ensued during which that man sustained fatal gunshot wounds. One of the victims of the robbery told the police that defendant was one of the perpetrators, and that defendant had called him on the date of the incident. The People then obtained defendant's cell phone records for a four-day period beginning on the date of the robbery by means of a court order issued upon a showing of less than probable cause pursuant to the federal Stored Communications Act (see 18 USC § 2703 [c], [d]; see generally Matter of 381 Search Warrants Directed to Facebook, Inc. [New York County Dist. Attorney's Off.], 29 N.Y.3d 231, 241-242 [2017]). The records included location information establishing that defendant called the relevant robbery victim multiple times from the general vicinity of the crime scene shortly before the robbery occurred. Defendant moved to suppress the location information, but not the portions of the records establishing that he called the victim. County Court denied the motion, and the location information was presented to the jury at trial. The jury convicted defendant of, inter alia, two counts each of murder in the second degree (Penal Law § 125.25 [1], [3]) and robbery in the first degree (§ 160.15 [2]). Defendant appeals from the judgment of conviction.


         We first address defendant's contention that the court erred in denying his Batson applications concerning the People's use of peremptory challenges to exclude two black prospective jurors. With respect to the first prospective juror, defendant pointed out that the People had not asked her any questions, and that she had said that her work on her dissertation as a graduate student would not interfere with her ability to serve as a juror. The prosecutor then stated, inter alia, that she challenged the first prospective juror because she was studying psychology. Defendant responded that the prospective juror's status as a student was "not an extraordinary factor, " but the court nonetheless denied his Batson application. With respect to the second prospective juror, defendant asserted that the People were engaging in a pattern of discriminatory strikes, and that the prospective juror had "indicat[ed] no bias." The prosecutor explained that she challenged the second prospective juror because of an answer she had given to a question concerning accomplice liability, and the court again denied defendant's application.

         Inasmuch as the prosecutor offered race-neutral reasons for the challenges and the court thereafter "ruled on the ultimate issue" by determining, albeit implicitly, that those reasons were not pretextual (People v Smocum, 99 N.Y.2d 418, 423 [2003]; see People v Dandridge, 26 A.D.3d 779, 780 [4th Dept 2006], lv denied 9 N.Y.3d 1032 [2008]), the issue of the sufficiency of defendant's prima facie showing of discrimination at step one of the Batson analysis is moot (see Smocum, 99 N.Y.2d at 423; People v Mallory, 121 A.D.3d 1566, 1567 [4th Dept 2014]; cf. People v Bridgeforth, 28 N.Y.3d 567, 575-576 [2016]). With respect to the merits of defendant's contention, however, we conclude that the court did not abuse its discretion in crediting, as nonpretextual, reasons offered by the prosecutor for each of the challenges (see People v Ramos, 124 A.D.3d 1286, 1287 [4th Dept 2015], lv denied 25 N.Y.3d 1076');">25 N.Y.3d 1076 [2015], reconsideration denied 26 N.Y.3d 933');">26 N.Y.3d 933 [2015]), i.e., the first prospective juror's status as a psychology student (see People v Ross, 83 A.D.3d 741, 742 [2d Dept 2011], lv denied 17 N.Y.3d 800');">17 N.Y.3d 800 [2011]; People v Quiles, 74 A.D.3d 1241, 1243-1244 [2d Dept 2010]; see generally People v Wilson, 43 A.D.3d 1409, 1411 [4th Dept 2007], lv denied 9 N.Y.3d 994');">9 N.Y.3d 994 [2007]), and the second prospective juror's accomplice-liability-related answer that the People considered unfavorable to their theory of the case (see generally People v Hecker, 15 N.Y.3d 625, 650 [2010]).

         Although defendant contends that the first prospective juror's status as a psychology student was a pretext for discrimination because it did not relate to the facts of the case, he failed to preserve that specific contention for our review (see People v Holloway, 71 A.D.3d 1486, 1486-1487 [4th Dept 2010], lv denied15 N.Y.3d 774');">15 N.Y.3d 774 [2010]; see generally Smocum, 99 N.Y.2d at 422). In any event, we conclude that defendant's contention is without merit. The lack of a relationship between a race-neutral reason for a peremptory challenge and the facts of a case does not automatically establish that the reason is pretextual (see People v Black, 15 N.Y.3d 625, 664 [2010], cert denied563 U.S. 947');">563 U.S. 947 [2011]; People v Harrison, 124 A.D.3d 499, 499-500 [1st Dept 2015], lv denied27 N.Y.3d 998');">27 N.Y.3d 998 [2016]; Ross, 83 A.D.3d at 741-742). We note that the record does not establish that the prosecutor engaged in disparate treatment of other panelists similarly situated to the first prospective juror (see People v Toliver, 102 A.D.3d 411, 412 [1st Dept 2013], lv denied21 N.Y.3d 1011');">21 N.Y.3d 1011 [2013], reconsideration denied21 N.Y.3d 1077');">21 N.Y.3d 1077 [2013]). Defendant's claim of pretext based on the allegedly disparate treatment of the second prospective juror and a panelist later seated as an alternate juror is unpreserved for our review because ...

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