author: Chief Judge Kaye. G.B. Smith, J.

text:
    [850 NE2d 630, 817 NYS2d 583]
    The People of the State of New York, Respondent, v Paris Drake, Appellant.
    Argued March 30, 2006;
    decided May 9, 2006

      POINTS OF COUNSEL

      Office of the Appellate Defender, New York City (Richard M. Greenberg of counsel), for appellant.
    I. Paris Drake was denied a fair trial and the right to have the jury fairly evaluate the evidence when the court improperly instructed the jury that it could not consider the testimony of defense identification expert, Dr. Elizabeth Loftus, for the purpose of either crediting or discrediting the reliability of eyewitness testimony in general or in this case, essentially precluding the jury from considering her testimony at all. (People v Radcliffe, 196 Misc 2d 381; Neil v Biggers, 409 US 188; People v Owens, 69 NY2d 585; People v Odell, 230 NY 481; People v Culhane, 45 NY2d 757; People v Ladd, 89 NY2d 893; People v Russell, 266 NY 147; People v Gardner, 59 AD2d 913; People v Lee, 96 NY2d 157; People v Jones, 74 AD2d 854.) II. Paris Drake was denied his right to a fair trial and his Sixth Amendment right to confront and comprehensively cross-examine the witnesses against him when the court precluded him from recalling CF, a key prosecution witness, for the purpose of impeaching him with materially inconsistent statements he made to the press after his testimony. (Delaware v Van Arsdall, 475 US 673; Davis v Alaska, 415 US 308; Chambers v Mississippi, 410 US 284; People v Hults, 76 NY2d 190; People v Gissendanner, 48 NY2d 543; People v Sepulveda, 105 AD2d 854; People v Farruggia, 77 AD2d 447; People v Hurd, 71 AD2d 925; Brookhart v Janis, 384 US 1; People v Wise, 46 NY2d 321.) III. Paris Drake was denied his fundamental rights to confront and cross-examine the witnesses against him and to obtain potentially exculpatory information when the court first refused to conduct an in camera examination of the psychiatric records of LW, the prosecution’s most important witness, and then precluded the defense from cross-examining her regarding a psychiatric therapy session she had left immediately prior to witnessing the crime. (People v Gissendanner, 48 NY2d 543; People v Knowell, 127 AD2d 794; Pennsylvania v Ritchie, 480 US 39; People v Jackson, 237 AD2d 179; Green v New York City Hous. Auth., 186 AD2d 455; Cox v New York City Hous. Auth., 105 AD2d 663; People v Baranek, 287 AD2d 74; People v Smith, 192 AD2d 806; People v Melville, 90 AD2d 488; People v Tissois, 72 NY2d 75.)

      Robert M. Morgenthau, District Attorney, New York City (Mark Dwyer of counsel), for respondent.
    I. Defendant’s identity as the man who assaulted Nicole Barrett was proved by overwhelming evidence. (People v Arroyo, 54 NY2d 567, 456 US 979; People v Joyiens, 39 NY2d 197; People v Tejeda, 73 NY2d 958; People v Contes, 60 NY2d 620; People v Huertas, 75 NY2d 487.) II. The trial court favored the defense when it admitted the testimony of an identification “expert,” and the court’s charge on the identification issue fairly put that issue to the jury. (People v Lee, 96 NY2d 157; People v Kello, 96 NY2d 740; People v Brown, 97 NY2d 500; People v Miller, 8 AD3d 176, 6 NY3d 295; People v Voliton, 83 NY2d 192; People v Russell, 71 NY2d 1016; People v Fernandez, 12 AD3d 251; People v Fields, 87 NY2d 821.) III. The trial court properly exercised its discretion when it denied defendant’s request to recall a witness for, at best, marginal impeachment. (People v Kello, 96 NY2d 740; People v Aska, 91 NY2d 979; People v Hooker, 245 AD2d 528; People v Duncan, 46 NY2d 74, 442 US 910; Delaware v Van Arsdall, 475 US 673; Davis v Alaska, 415 US 308; People v Sorge, 301 NY 198; People v Cordero, 306 AD2d 9; People v Gonzalez, 254 AD2d 5; People v Olsen, 34 NY2d 349.) IV. The trial court properly rejected defendant’s application to punish LW for cooperating with the criminal justice system by publicizing the irrelevant fact that she had visited a therapist. (People v Borrello, 52 NY2d 952; People v Graves, 85 NY2d 1024; People v Kello, 96 NY2d 740; People v Gissendanner, 48 NY2d 543; People v Andino, 291 AD2d 242; People v Valentine, 160 AD2d 325; Delaware v Van Arsdall, 475 US 673; People v Harrell, 209 AD2d 160, 86 NY2d 806; People v Torres, 289 AD2d 136; People v Macon, 256 AD2d 134.)
   OPINION OF THE COURT

Chief Judge Kaye.

On the afternoon of November 16, 1999, Nicole Barrett was seriously injured when, suddenly and without warning, a man struck her in the head with a brick while she was waiting at a busy intersection in midtown Manhattan. Although Barrett did not see her assailant, there were several eyewitnesses to the attack. Bystanders chased the fleeing suspect, but were unable to apprehend him. Nearly two weeks later, after an intensive investigation, defendant was arrested and charged in the assault.

The issue of identification was hotly contested at defendant’s trial. Two eyewitnesses testified that defendant was the man they had seen either throw the brick or flee the scene, three testified that he was not that man, and several were unable to say. Concluding that “this case is one in which expert testimony will benefit the jury by providing the framework for it to evaluate the accuracy and reliability of the eyewitness testimony” (People v Drake, 188 Misc 2d 210, 215 [Sup Ct, NY County 2001]), Supreme Court granted defendant’s pretrial motion to admit the testimony of Dr. Elizabeth Loftus, an expert in the reliability of eyewitness identification testimony, as courts are encouraged to do in appropriate cases (see People v Young, 7 NY3d 40 [2006] [decided today]). The court ruled that the expert would be permitted to testify as to certain psychological factors that may influence the accuracy of an eyewitness identification, but held that

“[t]o prevent any possibility that the expert testimony will infringe upon the jury’s fact-finding function, the witness will not be permitted to give opinion testimony regarding the credibility or reliability of any witness. In addition, the expert may not opine as to whether any of the specific psychological factors outlined above actually influenced the identifications. In short, the testimony of the expert is limited to setting forth the relevant psychological factors and interpreting the research data that demonstrate an effect on memory and perception” (188 Misc 2d at 215).

Since defendant raised no objection to these limitations, the propriety of the court’s ruling in this regard is not before us (cf. People v Cronin, 60 NY2d 430, 433 [1983] [error to preclude opinion testimony of an expert witness on the basis that the opinion “went to the ultimate question and would usurp the jury’s function”]; People v Lee, 96 NY2d 157, 162 [2001] [“(e)xpert opinion testimony is used in partial substitution for the jury’s otherwise exclusive province which is to draw conclusions from the facts. It is a kind of authorized encroachment in that respect” (internal quotation marks and citations omitted)]).

At the conclusion of the case, the court, over defendant’s objection, charged the jury that the testimony of Dr. Loftus “may not be used to discredit or accredit the reliability of eyewitness testimony in general, or in this case.” Although we agree with defendant that this single sentence of the charge, when read in isolation, “was improper and should not have been used” (People v Fields, 87 NY2d 821, 823 [1995] [emphasis omitted]), we conclude, as did the Appellate Division, that the court’s charge, taken as a whole, conveyed to the jury the correct standard as to the proper use of expert testimony. We therefore uphold defendant’s conviction of first-degree assault and third-degree criminal possession of a weapon.

The Sentence of the Charge in Isolation

The trial court apparently wished to communicate to the jury that it could not accept or reject the proffered eyewitness identifications based solely on expert testimony that the accuracy of such identifications may be influenced by a variety of psychological factors, but was instead required to render its own judgment. However, the words the court chose to express that thought were ill advised. Read in isolation, the sentence instructing that Dr. Loftus’s testimony could not be used “to discredit or accredit the reliability of eyewitness testimony in general or in this case” was incorrect. Indeed, it might be taken to mean that the expert testimony the court had admitted could not in the end be considered for any purpose at all.

Inasmuch as the court had specifically precluded Dr. Loftus from “giv[ing] opinion testimony regarding the credibility or reliability of any witness ... or opin[ing] as to whether any of the specific psychological factors outlined above actually influenced the identifications” (188 Misc 2d at 215), there was no real danger here thát the jurors would simply adopt the expert’s opinion as to the reliability of these particular identifications. After all, the expert had never rendered one. Rather, she had, consistent with the court’s ruling, merely “set[ ] forth the relevant psychological factors and interpret[ed] the research data that demonstrate an effect on memory and perception.” (Id.)

Of course, jurors remain always free to accept or reject expert evidence in the first instance, and the jury here was properly so instructed:

“The opinion of an expert witness is subject to the same tests concerning reliability and credibility as the testimony of any other witness. It is up to you as the triers of fact to determine whether to accept or reject an expert’s opinion.
“Given to assist you in reaching a proper conclusion, expert testimony is entitled to such weight as you find the expert’s qualifications in his or her field warrant and it may be considered by you, but it’s not controlling on your judgment.”

Where there has been expert testimony on the reliability of eyewitness identifications, jurors must, if they choose to accept that testimony, be permitted to apply the identified psychological factors to the facts of the case before them in deciding whether they are convinced beyond a reasonable doubt as to the accuracy of the proffered identifications. Indeed, that is the only conceivable purpose of such testimony. Courts should therefore instruct jurors that if they accept the expert’s testimony, they may consider it along with all the other evidence in the case in determining whether the People have proved the defendant’s guilt beyond a reasonable doubt.

The Sentence in Context

In charging a jury, the court must state “the material legal principles applicable to the particular case, and, so far as practicable, explain the application of the law to the facts” (CPL 300.10 [2]). However, a charge “may be sufficient, indeed substantially correct, even though it contains phrases which, isolated from their context, seem erroneous” (People v Ladd, 89 NY2d 893, 895 [1996]). “The test is always whether the jury, hearing the whole charge, would gather from its language the correct rules which should be applied in arriving at decision” (People v Russell, 266 NY 147, 153 [1934]).

Here, the charge as a whole did not communicate to the jurors that they should disregard the testimony of Dr. Loftus. Rather, the court expressly instructed the jury that the testimony “was admitted for the purpose of providing the jury with various factors which scientific studies have shown are relevant to a person’s ability to perceive and remember,” while properly charging that “[y]ou, the jury, are the sole and exclusive judges of the reliability and credibility of the eyewitness testimony in this case.” No reasonable juror could have concluded from the court’s instructions that Dr. Loftus’s testimony had been effectively stricken from the case.

Defendant raises only two other contentions — first, that the court erred in precluding him from recalling a prosecution witness to the stand for purposes of impeachment and second, that the court erred in denying his requests to inspect in camera the confidential psychiatric records of another witness and to cross-examine that witness about a therapy session she had attended on the day of the crime. Neither of these evidentiary determinations constituted an abuse of discretion.

Accordingly, the order of the Appellate Division should be affirmed.

G.B. Smith, J.

(dissenting). In this case where 2 out of 11 eyewitnesses identified defendant as the assailant and where three eyewitnesses unequivocally stated that defendant was not the attacker, the trial court’s charge that the jury could not use the testimony of an eyewitness identification expert to reach its verdict was both an error of law and prejudicial.

On November 16, 1999, Nicole Barrett was standing on the northeast corner of East 42nd Street and Madison Avenue in Manhattan when a man threw a brick, hitting her in the head, and then ran away. Several accounts of the attack aired on television news, and the program coordinator of a Brooklyn homeless shelter called the police and reported he had a delusional and paranoid resident who matched the aired description of Barrett’s attacker. The homeless man, Clement Tikiba, had a criminal record and resided at the shelter from August 20, 1999 until November 16, 1999, the day of the attack. On that day, he disappeared and has never been found. Tikiba’s picture was placed in a photo array and two witnesses, LW and RD, selected him as the assailant.

Paris Drake was arrested two weeks following the attack based on an informant’s tip. He was placed in six lineups, where five people failed to identify him. LW however, who had previously selected Clement Tikiba in a photo array as the attacker, now identified defendant. AC, a maintenance worker, who did not see the crime but only the assailant running away, identified defendant in court as Barrett’s attacker. Although he initially refused to help police by looking at a photo array or a lineup, AC came forward after he saw defendant on television being escorted by the police.

Eleven eyewitnesses testified at trial: six for the prosecution and five for the defense. Nine of eleven did not identify defendant as the perpetrator. Only LW and AC identified defendant in court. Defendant was subsequently convicted of first-degree assault and third-degree criminal possession of a weapon.

LW’s testimony was significant for the prosecution because she was the only identifying witness who saw the attack. During trial the defense learned that LW had been returning from a visit to a psychotherapist when she witnessed the attack. The defendant asked for an in camera examination of LW’s psychiatric records to determine whether they were relevant to her state of mind at the time of the crime and whether this could have altered her perception. The prosecution disclosed that she was on “mild” prescription medication for anxiety but the court refused the in camera inspection and ruled that the defense could not ask her any questions relating to her therapy.

The defense called Dr. Elizabeth Loftus, a professor of psychology at the University of Washington, who testified about the memory retention process. Dr. Loftus testified that the memory acquisition phase could be affected by the presence of a weapon and by cross-racial identification. She testified that memory fades over time and can become susceptible to post-event formation or distorted by new information from outside sources like news reports. She also addressed the memory retrieval stage and the weak correlation between the confidence of an eyewitness and accuracy.

At the jury charge conference, the judge informed the parties of her planned charge which included the statement:

“The testimony of Dr. Loftus was admitted for the purpose of providing the jury with various factors which scientific studies have shown are relevant to a person’s ability to perceive and remember. This testimony may not be used to discredit or [accredit] the reliability of eyewitness testimony in general or in this case.”

The defendant opposed the charging of the last sentence quoted and the majority concedes that the latter sentence was “improper,” “ill advised” and should not have been used but concludes that the error was not prejudicial (majority op at 32).

Other than the erroneous sentence, the court gave the standard charge on expert testimony. It charged:

“You will recall that Dr. Maximo Koslow testified concerning his qualifications in the field of neurosurgery and that Dr. Elizabeth Loftus testified concerning her qualifications in the field of eyewitness identification.
“Where scientific, technical or other specialized knowledge will assist a jury in understanding evidence, our law permits a witness with special knowledge, skill, experience, training or education to state his or her opinion.
“You may consider the opinion of each expert along with the reasons given for his or her opinion and you may also consider the expert’s qualifications and credibility.
“The opinion of each witness was based on particular facts or scientific studies. You may reject an expert’s opinion if you find the facts established at this trial are different from those which form the basis of the expert’s opinion.
“You may also reject the opinion if after careful consideration of all of the evidence in the case, expert and other, you disagree with that opinion.
“In other words, you’re not required to accept an expert’s opinion to the exclusion of the facts and circumstances disclosed in the other testimony.
“The opinion of an expert witness is subject to the same tests concerning reliability and credibility as the testimony of any other witness. It is up to you as the triers of fact to determine whether to accept or reject an expert’s opinion.
“Given to assist you in reaching a proper conclusion, expert testimony is entitled to such weight as you find the expert’s qualifications in his or her field warrant and it may be considered by you, but it’s not controlling on your judgement.
“The testimony of Dr. Koslow was admitted to assist the jury in determining the effect and the seriousness of the injuries sustained by the complainant and the manner in which they may have been caused.
“This testimony may not be used as actual evidence of how the injuries occurred or to supplant the testimony of any eyewitness.
“The testimony of Dr. Loftus was admitted for the purpose of providing the jury with various factors which scientific studies have shown are relevant to a person’s ability to perceive and remember.”

The court then gave the erroneous charge that Dr. Loftus’ testimony “may not be used to discredit or accredit the reliability of eyewitness testimony in general or in this case.” The effect of that portion of the charge was to negate all of the testimony of Dr. Loftus. The trial judge accurately explained that the testimony of the medical expert, Dr. Koslow, was admitted to help the jury understand the seriousness of Barrett’s injuries but that it could not supplant eyewitness testimony on how the injuries occurred. The instruction left room for a jury to understand that since Dr. Koslow was not present during the attack, the eyewitness accounts could not be replaced by his testimony. The instruction regarding Dr. Loftus, however, was incorrect because her testimony was offered to influence the jury’s consideration of the eyewitness accounts. Ordering jurors to discount and ignore (that is neither credit nor discredit) the testimony of Dr. Loftus was thus highly prejudicial.

In People v Ladd (89 NY2d 893 [1996]), this Court reiterated that a jury charge may be sufficient even if it contains erroneous phrases and “[t]he test is always whether the jury, hearing the whole charge, would gather from its language the correct rules which should be applied in arriving at decision” (id. at 895, quoting People v Russell, 266 NY 147, 153 [1934]). We are therefore concerned with whether the correct instructions predominated. In this matter, they did not. Although the trial judge stated, prior to the incorrect instruction, that an expert’s testimony can be weighed for credibility like any other witness, the incorrect statement regarding accrediting and discrediting other witnesses erased and outweighed everything that came before. The jury was led to the conclusion that it could find Dr. Loftus’ testimony valuable but could not apply her statements about the science of memory to the testimony of LW or AC. This charge effectively negated Dr. Loftus’ testimony and predominated over the correct portions of the instructions.

The two eyewitness identifications form the center of the People’s case against defendant and without LW and AC, there would have been no case. Defendant’s only option to counter such significant testimony was to rebut the memory of these witnesses. The majority concludes that “[n]o reasonable juror could have concluded from the court’s instructions that Dr. Loftus’s testimony had been effectively stricken from the case” (majority op at 34) because the judge originally read them the correct standard jury instructions regarding the role of experts in a trial. We do not know the effect that these instructions had on the verdict but the majority takes the risk that the jury saw past this error. There is nothing in the record on which to base such an assumption (see People v Williams, 5 NY3d 732 [2005] [affirming reversal where incorrect instructions may have misled jurors to believe that they could not draw inferences concerning an absent ghost officer]; People v Graves, 76 NY2d 16 [1990] [holding instruction erroneous where it merged two separate elements and finding jury would not gather correct rule from instruction]).

The trial court also erred in its refusal to allow an in camera review of LW’s psychotherapy records. Under the Sixth Amendment to the United States Constitution, a defendant has the right to confront witnesses against him. The Supreme Court has construed this right by holding the “primary interest secured by it is the right of cross-examination” (Douglas v Alabama, 380 US 415, 418 [1965]). The Supreme Court has also “recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination” (Davis v Alaska, 415 US 308, 316-317 [1974], citing Greene v McElroy, 360 US 474, 496 [1959]). In People v Gissendanner (48 NY2d 543, 548 [1979]), this Court reiterated that

“access must be afforded to otherwise confidential data relevant and material to the determination of guilt or innocence, as, for example, when a request for access is directed toward revealing specific ‘biases, prejudices or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand’ ” (quoting Davis v Alaska, supra at 316).

Given LW’s importance to the People’s case and the prosecution’s concession that she was on medication, the court should have allowed an in camera inspection to determine whether her perception could have been hindered in any way by any medication or mental problems. In Davis v Alaska, the Supreme Court explained, “Whatever temporary embarrassment might result to [the witness] by disclosure of [sealed records] — if the prosecution insisted on using him to make its case — is outweighed by petitioner’s right to probe into the influence of possible bias in the testimony of a crucial identification witness” (415 US at 319). The trial court should have reviewed the medical records. Its refusal was error as a matter of law.

Accordingly, I dissent.

Judges Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur with Chief Judge Kaye; Judge G.B. Smith dissents and votes to reverse in a separate opinion.

Order affirmed.

       Contrary to the dissent, no eyewitness who identified defendant at trial had previously “selected Clement Tikiba in a photo array as the attacker” (dissenting op at 35). Rather, one witness noted that Tikiba “had some of the characteristics” of the perpetrator, describing him as a “seven out of ten.” Another initially selected Tikiba’s photograph as “someone I thought highly resembled the individual who threw the brick,” although it “was not a very good photograph and ... it would be very difficult to, you know, say one hundred percent as to anything as if it could be because of the quality of the photograph.” This witness later viewed a lineup in which he identified a different man (neither Tikiba nor defendant) as “look[ing] like” the perpetrator. Then, in a second lineup he stated that he “like[d] number five” — another person altogether. At trial, the witness admitted that to positively identify the assailant “would be difficult for me to do.” The jury, of course, heard all of this evidence and concluded that defendant was guilty, a verdict that was based on legally sufficient evidence, as defendant does not dispute. Whether another verdict might also have been reached is not germane to the issue before us.

       RD claims he had eye contact with the perpetrator following the attack.


source: Caselaw Access Project

author: R.S. Smith, J. G.B. Smith, J.

license: Public Domain

text:
    [850 NE2d 623, 817 NYS2d 576]
    The People of the State of New York, Respondent, v Rudolph Young, Appellant.
    Argued March 30, 2006;
    decided May 9, 2006

      POINTS OF COUNSEL

      Muldoon & Getz, Rochester (Gary Muldoon of counsel), for appellant.
    I. The trial court erred as a matter of law in finding that the witness had an independent source for her identification testimony. (People v Underwood, 239 AD2d 366; People v Malloy, 55 NY2d 296; People v Dickerson, 50 NY2d 937; People v Garcia, 255 AD2d 522; United States v Wade, 388 US 218; People v Pries, 206 AD2d 873; People v Moore, 96 AD2d 1044; People v Boyce, 89 AD2d 623; People v Reyes, 151 AD2d 435; People v Hall, 81 AD2d 644.) II. It was an abuse of discretion as a matter of law for the trial court to deny the defense request to call an expert witness as to identification. (People v Lee, 96 NY2d 157; People v Mooney, 76 NY2d 827; People v Jones, 210 AD2d 904; People v Carroll, 300 AD2d 911; People v Taylor, 75 NY2d 277; People v Henson, 33 NY2d 63; People v Cronin, 60 NY2d 430; People v Aphaylath, 68 NY2d 945; People v Lewis, 137 Misc 2d 84; People v Brooks, 128 Misc 2d 608.) III. The trial court erred in adjudicating defendant a persistent felony offender. (People v Rivera, 5 NY3d 61; People v Rosen, 96 NY2d 329; Brown v Greiner, 258 F Supp 2d 68, 409 F3d 523.)

      Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of counsel), for respondent.
    I. The trial court properly found that Lisa Sykes had a basis independent of a suppressed identification procedure from which she could identify defendant. (People v Dodt, 61 NY2d 408; United States v Wade, 388 US 218; People v Underwood, 239 AD2d 366; People v Moore, 96 AD2d 1044; People v Pries, 206 AD2d 873; People v Hall, 81 AD2d 644; People v Garcia, 255 AD2d 522; People v Reyes, 151 AD2d 435; People v Boyce, 89 AD2d 623; People v Malloy, 55 NY2d 296.) II. The trial court properly exercised its discretion in denying defendant’s request to present expert testimony on the issue of eyewitness identification. (People v Lee, 96 NY2d 157; People v Cronin, 60 NY2d 430; People v Taylor, 75 NY2d 277; People v Wesley, 83 NY2d 417; United States v Rincon, 28 F3d 921; People v Miller, 8 AD3d 176; People v Perry, 251 AD2d 895; People v Knighton, 165 AD2d 904; United States v Mathis, 264 F3d 321; United States v Kime, 99 F3d 870.) III. Defendant was properly sentenced as a persistent felony offender. (People v Rivera, 5 NY3d 61; People v Rosen, 96 NY2d 329; Brown v Greiner, 259 F Supp 2d 68, 409 F3d 523.)
   OPINION OF THE COURT

R.S. Smith, J.

The main issue is whether the trial court abused its discretion when it refused to allow an expert to testify about factors that affect the reliability of eyewitness identifications. The question is close, and the testimony might well have been admitted, but we conclude that there was no abuse of discretion.

Facts and Procedural History

In 1991, an intruder, concealing most of his body under a blanket and wearing a scarf over the lower part of his face, entered the home of William and Lisa Sykes and demanded money. He held an axe over the head of Mr. Sykes, who was in a wheelchair, and threatened to kill him. The Sykeses, accompanied by the intruder, looked for and found their wallets and turned over their cash. The intruder also took several watches from the top of their dresser. The Sykeses later found that other property, including binoculars and a pair of gloves, was missing from their cars.

Mrs. Sykes estimated that the intruder was in the house for from five to seven minutes. She said that she observed him intently in ample light, but acknowledged that she saw only part of his face and retained a “mental image” only of his eyes. The intruder was black; Mrs. Sykes is white. On the day of the crime, Mrs. Sykes told police she would not be able to help in preparing a “composite” sketch of the robber.

Defendant was arrested about a month after the event. Mr. Sykes never identified him as the robber, but Mrs. Sykes — after failing to recognize his picture in a photo array — picked him out of a lineup at which she both saw him and heard his voice. At defendant’s first trial, Mrs. Sykes testified to her lineup identification. Defendant was convicted, but the conviction was reversed because certain evidence, including the lineup identification, was held to be the result of an arrest without probable cause (People v Young, 255 AD2d 905 [1998]).

In 1999, before defendant was retried, the trial court held an “independent source” hearing, and found that Mrs. Sykes was able to identify defendant as the robber based on her observations at the time of the crime. At the retrial, Mrs. Sykes made an in-court identification.

The People also put in evidence at the retrial the binoculars and the gloves that had been missing from the Sykeses’ cars. These were obtained by the police a month after the crime from two women, both acquaintances of defendant. One of the women testified that she had received the binoculars from defendant, along with watches similar to those stolen from the Sykeses. The other woman testified that she did not know how the gloves came to be in her house; she had had many house guests, of whom defendant was one.

Defendant sought to present at the retrial the testimony of John Brigham, a professor of psychology who had studied factors affecting the accuracy of eyewitness identifications. In a proffer outside the presence of the jury, Brigham made the general statement that “eyewitness identification memories” are “a . . . difficult kind of memory ... a kind of memory that people are not good at; that is, recognizing the faces of strangers.”

Brigham also listed a number of factors that can make eyewitness identifications more or less accurate. Some, he acknowledged, are obvious — for example, the witness’s opportunity to observe — but others are less so. Among the factors Brigham mentioned were that people are generally more accurate in identifying people of their own race than of another race; that, where a crime is committed with a weapon, the victim’s tendency to focus on the weapon may interfere with his or her observation of the criminal; that a stressful experience is more likely to be a memorable one up to “a moderate level of stress,” but that events generating “higher levels of stress” are remembered less well; and that there is “only a very weak relationship” between a witness’s confidence in the accuracy of his or her recollection and its true accuracy — i.e., that people very confident in their recollections are often wrong. After hearing the proffer, the trial court ruled that the evidence would be excluded in the exercise of its discretion.

Defendant was again convicted of robbery and burglary. The Appellate Division affirmed the conviction, two Justices dissenting on the ground that the People failed to establish an independent source for Mrs. Sykes’s identification testimony. We now affirm.

Discussion

Defendant first argues that the trial court’s “independent source” finding, which the Appellate Division affirmed, was wrong as a matter of law. His argument, essentially, is that, considering Mrs. Sykes’s limited view of the robber, and the long lapse of time and the many intervening events — including the photo array and the lineup — between the crime and the independent source hearing, it was impossible to find by the requisite clear and convincing evidence that the lineup would not influence her in-court identification (see United States v Wade, 388 US 218, 240 [1967]; People v Ballott, 20 NY2d 600, 606 [1967]). The argument has force — indeed, it persuaded two Appellate Division Justices — but Supreme Court and the Appellate Division majority rejected it. In doing so they resolved an issue of fact. There is support in the record for their finding, and we may not disturb it (see People v Malloy, 55 NY2d 296, 300 [1982]).

The harder question is whether the trial court abused its discretion in excluding Brigham’s testimony. In People v Lee (96 NY2d 157 [2001]) (decided after the trial court’s ruling in this case), we held that the decision to admit or exclude evidence of this sort is a discretionary one. We said that although “jurors may be familiar from their own experience with factors relevant to the reliability of eyewitness observation and identification, it cannot be said that psychological studies regarding the accuracy of an identification are within the ken of the typical juror” (id. at 162). Thus, there are cases in which testimony like Brigham’s may be admitted, in the exercise of the court’s discretion; and indeed, there are cases in which it would be an abuse of discretion to exclude such evidence. This case is undoubtedly in the former category — the trial court here might well have admitted Brigham’s testimony — but we conclude that it is not in the latter; the trial court’s ruling was within the bounds of its discretion.

In reaching this conclusion, we consider two factors: the extent to which the research findings discussed by Brigham were relevant to Mrs. Sykes’s identification of defendant; and the extent to which that identification was corroborated by other evidence. The first of these factors favors the admission of the testimony — so much so that, if the identification were not strongly corroborated, the exclusion of Brigham’s testimony would be hard to justify. But the corroboration was strong enough for the trial court reasonably to conclude that the expert’s testimony would be of minor importance.

As we made clear in Lee, a court’s exercise of discretion in a case like this depends in large part on whether the “specialized knowledge” of the expert can give jurors more perspective than they get from “their day-to-day experience, their common observation and their knowledge” (id., quoting People v Cronin, 60 NY2d 430, 433 [1983]). In other words, could the expert tell the jury something significant that jurors would not ordinarily be expected to know already? Here, we think the answer is yes.

Admittedly, some parts of Brigham’s testimony concerned things jurors would not need an expert to tell them. It does not require scientific research, for example, to establish that an identification is more reliable when the witness’s original opportunity to observe was good. But some of Brigham’s other observations are, as he put it, “counter-intuitive” — or, at least not so obvious or well known that ordinary jurors would not benefit from hearing them. And in cases that depend solely or heavily on eyewitness testimony, jurors may also find it useful to know Brigham’s general conclusion that human recollection of the faces of strangers is, on the whole, rather poor.

Certainly, Brigham’s testimony could have been valuable to a juror in this case in assessing Mrs. Sykes’s testimony. Having seen only part of the offender’s face, and really remembering only his eyes, under conditions of high stress and with the terrifying distraction, part of the time, of an axe held over her husband’s head, she nevertheless identified defendant with complete — and, unquestionably, sincerely felt — confidence. Brigham’s testimony might have helped the jury in deciding whether that confidence was misplaced. Of course, that decision was for the jury, not Brigham, to make. His findings might have been undermined on cross-examination or refuted by other evidence, and even if they were not it would have been for the jury to decide what weight, if any, to give them. But if this case turned entirely on an uncorroborated eyewitness identification, it might well have been an abuse of discretion to deny the jury the benefit of Brigham’s opinions.

The corroborating evidence, however, significantly diminishes the importance of the proffered expert testimony in this case — as it did in Lee, where we affirmed a conviction arising out of a carjacking, despite the exclusion of expert testimony like that proffered here, in part because the defendant had been arrested driving the car in question (96 NY2d at 163). Here, stolen property was found in possession of two of defendant’s acquaintances; neither of them could have been the robber, since both were women; and one of them pointed to defendant as the person from whom she got the property. It was reasonable, under the circumstances, for the trial court to conclude that Mrs. Sykes’s identification was quite unlikely to be mistaken, and that Brigham’s testimony would be an unnecessary distraction for the jury.

Accordingly, the order of the Appellate Division should be affirmed.

G.B. Smith, J.

(dissenting). This is an appeal from the defendant’s second trial. At the first trial, the only witness to identify defendant testified that she picked him out of a lineup. No in-court identification was made. Defendant was found guilty of robbery in the first degree and burglary in the first degree. It was error, as a matter of law, to permit an independent source hearing for the prosecution’s only identification witness prior to the second trial. It was also an abuse of discretion for the court to preclude the admission of expert testimony by the defendant regarding the factors that affect the reliability of human perception. Accordingly, I dissent.

This case arises as a result of a March 1991 home invasion robbery of William and Lisa Sykes where the perpetrator wore a scarf over his face, a blanket over his clothes, and wielded an axe and a sledgehammer. The assailant’s forehead, eyes, and part of the nose were visible. Only Mrs. Sykes gave a description of the assailant to the police, whom she described as a black man in his twenties, 5 feet, 10 inches tall with a medium build. Mrs. Sykes was unable to help form a composite sketch immediately after the incident, nor could she identify anyone in a photo array a month following the home invasion. She did, however, identify appellant as the perpetrator in a lineup in April 1991. Defendant was subsequently convicted of robbery in the first degree (Penal Law § 160.15 [3] [two counts]) and burglary in the first degree (Penal Law § 140.30 [3]) in 1992.

Defendant’s initial 1992 conviction was reversed (People v Young, 255 AD2d 905 [4th Dept 1998]) as a result of a 1994 Appellate Division determination that the police lacked probable cause for their April 1991 arrest of appellant. A new trial was ordered. As a result of the 1998 reversal, Mrs. Sykes’ 1991 lineup identification of defendant, defendant’s statement at the time of arrest and police observations of defendant when arrested were also suppressed.

Since the Appellate Division permitted an independent source hearing prior to the second trial, and over defendant’s objection, Supreme Court conducted an independent source hearing in March 1999. The only witness to identify defendant stated that she had told the police that the perpetrator was “[a] man, light black in color, around five-ten, medium build, and later twenties.” She testified further that the man’s face was covered with a scarf with the exception of his eyebrows, eyes and part of his nose. His clothes were covered with a blanket from the Sykes’ car. Mrs. Sykes testified that because she had focused on the intruder’s eyes during the robbery, she was certain it was defendant. Furthermore, she claimed that she engraved a mental picture of defendant’s eyes in her mind and had nightmares for several nights following the invasion. She testified that there was nothing distinctive about the portions of his face that she observed. The man was carrying an axe and a sledgehammer that belonged to the Sykes. The intruder demanded money and he followed her husband, who was in a wheelchair, into another room to get it. The man also took money which Mrs. Sykes obtained from her purse. At one point, the perpetrator ordered her not to look at him. The intruder was in their presence for five to seven minutes. Subsequently, Mrs. Sykes declined to aid the police in making a sketch of the intruder because she had not seen his whole face. Moreover, she failed to pick him out of several photographs shown to her.

Defendant was convicted again in January 2000 of robbery in the first degree (Penal Law § 160.15 [3] [two counts]) and burglary in the first degree (Penal Law § 140.30 [3]).

Supreme Court erred in its determination that the People established, by clear and convincing evidence, that Mrs. Sykes had an independent basis for her second-trial, in-court identification of defendant. The court asked Mrs. Sykes:

“the court: Do you have a recollection of the defendant, independent of having seen him at the lineup?
“the witness: Yes, from that night in our home.
“the court: That is independent of the lineup; is that correct?
“the witness: That date on March 29. . . . Yes.”

This was hardly convincing in light of the prior testimony as to the circumstances of the home invasion. As recognized by the two-Justice dissent at the Appellate Division, the fact that the witness could not assist in composing a composite sketch and could not identify a photograph of the defendant are factors that make any in-court identification impermissible as a matter of law in this case.

The trial court also erred in refusing to permit expert testimony on the issue of identification. Dr. John Brigham was a professor of psychology at Florida State University and a former president of the American Psychology-Law Society. In an offer of proof, Professor Brigham was prepared to testify to three factors that affect a person’s ability to make an accurate identification including (1) factors affecting memory such as an ability to observe, cross-racial identification, stress, a weapon, a distinctive face and a disguise; (2) retention of what was observed including elapsed time, information obtained after the event and unconscious transference; and (3) retrieval of a situation including suggestiveness and the absence of correlation between confidence and accuracy. Dr. Brigham attempted to convey scientific findings that showed the weak correlation between witness confidence and accuracy, the difficulty of remembering a face when the mind cannot encode all the features at once, and the possibility of memory source confusion.

As defendant’s expert indicated, “[t]he most difficult part of a memory to maintain is the source.” If the witness could not help form a composite sketch or identify defendant’s photo in an array days before the illegal lineup, her testimony that defendant was the intruder had no independent basis separate from the illegal lineup. During the court’s examination of Dr. Brigham, the trial judge seemed inappropriately concerned by Dr. Brigham’s studies on stress and reliability which did not include persons who were personally robbed, but people who witnessed staged robberies (cf. People v Aphaylath, 68 NY2d 945 [1986] [holding that an expert need not have knowledge of a defendant’s particular characteristics for testimony to be admitted]). The judge gave no reason, however, for his disallowance of Dr. Brigham’s testimony but stated he was “going to exercise [his] discretion . . . [and] not . . . allow as evidence [Dr. Brigham’s] testimony at the time of trial.”

In fact, during questioning at the hearing, Mrs. Sykes repeatedly stated she was not sure defendant was the intruder until she saw and heard him in the lineup. Nothing occurred subsequent to defendant’s illegal arrest in the intervening eight years that demonstrated Mrs. Sykes’ independent observation of defendant as the perpetrator. Therefore, both the independent source hearing and its finding were errors as a matter of law.

In People v Mooney (76 NY2d 827, 828 [1990]), then Judge Kaye dissented from what she termed the “court’s cursory treatment of defendant’s claim” that expert testimony be admitted. She went on to say that “the emerging trend today is to find expert psychological testimony on eyewitness identification sufficiently reliable to be admitted, and the vast majority of academic commentators have urged its acceptance” (76 NY2d at 829). That statement applies to this case.

In People v Lee (96 NY2d 157 [2001]), this Court unanimously stated that a trial court has discretion to allow expert testimony on the reliability of eyewitness identification where it determines the expert would assist the jury in reaching a verdict. There, this Court upheld the denial of expert testimony. In Lee, however, the witness had picked defendant’s photograph from an array shown to him, had identified defendant at a lineup and identified him again at the trial. In Lee the initial identification by photograph took place approximately six months after the incident. Here, by contrast, the witness could not help form a composite sketch on the night of the incident, did not identify defendant in a photo array a month after the incident, did identify the defendant in a lineup two days after the photo array and did identify him in court eight years after the incident.

The majority’s ruling misses the opportunity to hold that here, as a matter of law, where eyewitness identification is attenuated and possibly tainted, and corroborating evidence is weak, courts should allow expert testimony concerning eyewitness identification.

Accordingly, I dissent.

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo and Read concur with Judge R.S. Smith; Judge G.B. Smith dissents and votes to reverse in a separate opinion.

Order affirmed.

       For instance, Dr. Brigham stated:
      “[This testimony] may strike you as being obvious, but [it is] not obvious to the average juror when jurors are asked about these factors. In our own study and other studies prospective jurors are asked. A lot of them don’t know about these things, don’t know about weapon focus. They don’t know about the effect of stress. They begin when somebody says it’s burned on my memory, it must be accurate, when, in fact, research shows that it’s unlikely to be. They may or may not know about suggestivity. They don’t know about unconscious transference. They don’t know about the effect of post event determination. There are a lot of factors too.”


author: Graffeo, J. G.B. Smith, J.

text:
    [850 NE2d 637, 817 NYS2d 590]
    The People of the State of New York, Respondent, v Terence Wells, Appellant.
    Argued March 29, 2006;
    decided May 11, 2006

      POINTS OF COUNSEL

      Office of the Appellate Defender, New York City (Brian W Stull, Richard M. Greenberg and Sara Gurwitch of counsel), for appellant.
    I. The trial court erred in refusing to strike a newly-seated panel of prospective jurors after a venireperson tainted the panel by bearing witness to the honesty of the prosecution’s most crucial police witness, Detective Eddie Molina. (Mach v Stewart, 137 F3d 630; Irvin v Dowd, 366 US 717; People v Branch, 46 NY2d 645; Smith v Phillips, 455 US 209; People v Ayuso, 254 AD2d 26; United States v Trujillo, 146 F3d 838;
      United States v Khoury, 901 F2d 948; People v Carrasco, 262 AD2d 50; People v Purcell, 103 AD2d 938; People v Blyden, 55 NY2d 73.) II. Where the prosecution’s proffered reason for exercising a peremptory challenge against a female African-American prospective juror was that the juror reminded the prosecutor of a female African-American judge, the prosecution failed to meet its burden of providing a race-neutral reason at step two of the Batson inquiry. (Batson v Kentucky, 476 US 79; People v Smocum, 99 NY2d 418; People v Allen, 86 NY2d 101; People v Duncan, 177 AD2d 187; People v Van Hoesen, 307 AD2d 376; People v Pierrot, 289 AD2d 511; People v Taam, 260 AD2d 261; Purkett v Elem, 514 US 765; Howard v Senkowski, 986 F2d 24; Gattis v Snyder, 278 F3d 222.) III. The allegation that Terence Wells attempted to kill a police officer was rendered impermissibly duplicitous by the trial evidence which suggested two potential victims, and the court erred by submitting this duplicitous count to the jury without instructing the jury on which charge it was to deliberate. (People v Jiminez, 239 AD2d 360; People v Keindl, 68 NY2d 410; People v Beauchamp, 74 NY2d 639; People v First Meridian Planning Corp., 86 NY2d 608; People v Sullivan, 173 NY 122; People v Fernandez, 88 NY2d 777; People v Cahill, 2 NY3d 14; People v Gonzalez, 1 NY3d 464; People v Jernatowski, 238 NY 188.)

      Robert M. Morgenthau, District Attorney, New York City (Sandra E. Cavazos and Sylvia Wertheimer of counsel), for respondent.
    I. The court correctly exercised its discretion in denying defendant’s motion to dismiss an entire jury panel based on an isolated remark by one panelist who knew Detective Molina. (People v Williams, 63 NY2d 882; People v Guzman, 76 NY2d 1; People v Cruz, 292 AD2d 175; People v Ayuso, 254 AD2d 26; People v Ali, 241 AD2d 321; Mach v Stewart, 137 F3d 630; People v Fisher, 244 AD2d 191; People v Perez, 203 AD2d 123; People v Davis, 58 NY2d 1102; People v Owens, 292 AD2d 218.) II. Defendant has failed to preserve his Batson claim. In any event, the prosecutor’s reasons for exercising a peremptory challenge against prospective juror Corlis Brown were facially race-neutral. (People v Smocum, 99 NY2d 418; People v Allen, 86 NY2d 101; Purkett v Elem, 514 US 765; Hernandez v New York, 500 US 352; People v Payne, 88 NY2d 172; People v James, 99 NY2d 264; People v Williams, 92 NY2d 993; People v Stephens, 84 NY2d 990; People v Childress, 81 NY2d 263; People v Finger, 95 NY2d 894; People v Gray, 86 NY2d 10.) III. The attempted murder count based on the shots defendant fired at detectives Molina and Weston was not duplicitous. (People v Fernandez, 88 NY2d 777; People v Davis, 72 NY2d 32; People v Keindl, 68 NY2d 410; People v Beauchamp, 74 NY2d 639; People v Mike, 92 NY2d 996; People v Cabassa, 79 NY2d 722; People v Stanley, 23 AD3d 683; People v Perry, 266 AD2d 151; People v Sullivan, 173 NY 122; Schad v Arizona, 501 US 624.)
   OPINION OF THE COURT

Graffeo, J.

This appeal focuses on whether a single charge of attempted intentional murder is duplicitous when the evidence adduced at trial demonstrates that the defendant fired a gun in the direction of more than one individual but does not definitively establish the identity of the intended victim. Based on the reasoning expressed in People v Fernandez (88 NY2d 777 [1996]), we conclude that such a charge is not defective and, thus, may be submitted to the jury.

I

On October 13, 1999, defendant Terence Wells and his accomplice Lerone Grant planned to rob a Manhattan bakery. Just before the store closed, they entered wearing wigs and hats, and each was armed with a handgun. In the course of their attempt to steal cash kept in the store’s office, they killed two individuals by shooting them multiple times and seriously injured two others.

At the time of the shootings, several undercover police officers were preparing to conduct a narcotics surveillance operation in the vicinity of the bakery. Two detectives, Christopher Weston and Eddie Molina, heard what sounded like firecrackers and saw a number of individuals fleeing the bakery. Upon seeing defendant and Grant run out of the store with what appeared to be a weapon, Detective Weston announced that he was a police officer and ordered the men to stop. Defendant responded by firing his gun twice in the direction of the two detectives as he ran up the street.

A foot chase by the police ensued. Defendant dropped several articles of clothing to the ground and a police officer retrieved one of the items — a wig — discovering a handgun concealed inside. Eventually, defendant was apprehended by another police officer who answered a call for assistance. Defendant’s accomplice was also arrested after he shot at police officers and abandoned his weapon.

Defendant, along with Grant and several other individuals involved in the planning or execution of these crimes, was charged with multiple counts of murder in the first and second degrees, attempted murder in the first degree of a police officer and related offenses. Following a jury trial, defendant was convicted of, among other crimes, murder in the first and second degrees and one count of attempted murder in the second degree as a lesser included offense of attempted murder of a police officer. Defendant was subsequently sentenced to an aggregate prison term of 50 years to life. The Appellate Division affirmed, as do we.

II

At the close of proof at trial, defendant moved to dismiss the count of the indictment that charged him with attempted first-degree murder of a police officer, arguing that the count was duplicitous because the evidence failed to establish whether defendant intended to kill Detective Weston or Detective Molina. The trial court reserved decision and charged the jury on the elements of attempted first-degree murder as well as the lesser-included offense of attempted murder in the second degree. With regard to the greater offense, the court instructed that this count required the jury to find that defendant intended to kill a police officer who was engaged in the course of performing his official acts. As for the lesser offense, the court initially informed the jury that it had to find that defendant’s intended victim was Detective Molina, but the court later amended its charge and told the jury that the People had to prove that defendant intended to cause the death of “another person.” Defendant objected to these instructions, reiterating his earlier argument that they allowed the jury to convict without unanimously identifying the individual that defendant sought to kill and, therefore, the first-degree murder count was duplicitous. The court rejected this contention on the authority of People v Fernandez (88 NY2d 777 [1996]), thereby effectively denying defendant’s motion to dismiss on duplicity grounds.

During deliberations, the jury sent a note seeking clarification of whether the count of attempted murder in the first degree applied to “Detective Molina alone or to detectives Molina and/or Weston.” The court responded that this issue was a question of fact for the jury to resolve. Defense counsel again voiced his duplicity objection, but was overruled. The jury ultimately acquitted defendant of attempted first-degree murder but convicted him of attempted murder in the second degree.

The primary issue on appeal is whether the count of the indictment charging defendant with attempted murder in the first degree for shooting at the two detectives was duplicitous since the evidence at trial failed to specify which police officer defendant intended to kill. Defendant asserts that the attempted murder count was defective in that it was used to prosecute two distinct crimes and that the trial court committed reversible error because the jury was not instructed to unanimously determine whether the intended victim was Detective Molina or Detective Weston.

A count of an indictment is duplicitous and, hence, defective if it charges more than one offense (see CPL 200.30 [1]; People v Keindl, 68 NY2d 410, 417-418 [1986]). If the commission of a single act constitutes a crime, “that act must be the only offense alleged in the count” and “acts which separately and individually make out distinct crimes must be charged in separate and distinct counts” (People v Keindl, 68 NY2d at 417). As relevant to this case, the offense of first-degree murder is committed when, with the intent to kill a police officer engaged in the performance of official duties, the defendant causes the death of that police officer or a third person and “the defendant knew or reasonably should have known that the intended victim was a police officer” (Penal Law § 125.27 [1] [a] [i]). Second-degree murder, a lesser included offense, similarly requires an intent to kill, but that intent may be directed at “another person” who need not be a police officer (Penal Law § 125.25 [1]). An attempt to commit these crimes occurs if a defendant, possessing the requisite murderous intent, acts in a manner that “tends to effect the commission of such crime [s]” (Penal Law § 110.00).

Although the People were required to demonstrate that defendant intended to kill, we conclude that the People did not have to establish which of the two police officers was the target of defendant’s conduct under the facts presented in this case. As we explained in People v Fernandez (88 NY2d 777 [1996]), “actual death is not an element” of attempted murder and, therefore, the “identity of the person whose death” was intended is not relevant in determining whether the crime has been committed (id. at 783). The defendant in Fernandez was charged with attempted murder for firing a gun at a group of individuals and shooting a person named Correa. We ruled that it was proper to instruct the jury that it could convict the defendant of attempted murder if it found that he intended to cause the death of Correa or another person in the group (see id.). And, in People v Cabassa (79 NY2d 722, 728 [1992], cert denied sub nom. Lind v New York, 506 US 1011 [1992]), we concluded that there was sufficient evidence to support an attempted first-degree murder conviction where a gun was fired indiscriminately toward two pursuing police officers who were in the same patrol car and at a police officer standing on the street next to a roadblock.

Under this rationale, the identity of the specific police officer against whom defendant’s murderous intent was directed is not an element of attempted murder in the first or second degree. As a result, the jury in this case was properly advised that it could convict defendant of attempted murder if defendant acted with the intent to kill, without specifying whether the intended victim was Detective Molina or Detective Weston (cf. People v Mateo, 2 NY3d 383, 406-408 [2004], cert denied 542 US 946 [2004] [in first-degree murder prosecution, jury is not required to unanimously decide whether the defendant was the actual killer or commanded another to kill]). The trial court’s refusal to instruct the jury that it had to unanimously determine which detective defendant intended to kill did not render the attempted murder counts duplicitous because each charged a single crime based on a single incident — engaging in conduct (the shooting at Detectives Molina and Weston) that tended to effect the crime of murder while acting with the intent to cause the death of a police officer or another person. Consequently, there is no basis to disturb the attempted second-degree murder conviction.

Ill

Defendant also maintains that he is entitled to a new trial because the prosecutor impermissibly used a peremptory chailenge against a female African-American prospective juror in violation of Batson v Kentucky (476 US 79 [1986]). Defense counsel raised a Batson challenge during the second round of jury selection. When asked by the trial court to provide race-neutral reasons for the removal of this woman, the prosecutor stated that the prospective juror had held her hand over her mouth when answering questions, which indicated to the prosecutor that the juror had “something to hide.” The prosecutor also claimed that the juror had “an unsettling gaze” that was “difficult to deal with,” and remarked that the juror reminded her of a particular New York City judge. In addition, the prosecutor noted that the juror liked to read detective stories and “might have [an] expectation of what should be part of a case.” Defendant did not claim that the prosecutor’s reasons were pretextual. The trial court found the justifications for the peremptory challenge to be nondiscriminatory and denied defendant’s Batson application.

“[I]n order to establish a prima facie case of discrimination in the selection of jurors under Bat-son, a defendant asserting a claim must show that the exercise of peremptory challenges by the prosecution removes one or more members of a cognizable racial group from the venire and that facts and other relevant circumstances support a finding that the use of these peremptory challenges excludes potential jurors because of their race” (People v Brown, 97 NY2d 500, 507 [2002]).

Once these showings are made, the burden then shifts to the People to respond with a race-neutral explanation for the peremptory challenge (see id.). “If a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination” (Purkett v Elem, 514 US 765, 767 [1995]) or whether the reasons proffered by the prosecution were pretextual (see People v Allen, 86 NY2d 101, 104 [1995]).

We conclude that the record supports the trial court’s determination that the prosecutor’s justifications were race-neutral. The prosecutor’s reasons for exercising the peremptory challenge focused on the juror’s demeanor (placing her hand over her mouth and having an “unsettling gaze”) and fondness for detective stories (which might cause her to have certain expectations about the trial evidence). Furthermore, the prosecutor’s reference to a particular judge, although in “poor taste” as noted by the Appellate Division (14 AD3d 320, 321 [2005]), was not facially race-based (see Purkett v Elem, 514 US at 768 [“Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral” (internal quotation marks omitted)]). Because the People’s burden “is met by offering any facially neutral reason for the challenge — even if that reason is ill-founded — so long as the reason does not violate equal protection” (People v Allen, 86 NY2d at 109), and the trial court’s findings are entitled to deference (People v Hernandez, 75 NY2d 350, 356 [1990], affd 500 US 352 [1991]), we cannot say that the prosecutor’s justifications for the use of the peremptory challenge were inadequate.

IV

Finally, defendant contends that the trial court erred in refusing to discharge an entire panel of prospective jurors after a comment about a possible witness was made by one member of the array. During the fourth round of jury selection and after 10 individuals had been sworn as jurors, the trial court read a list of potential witnesses to a panel of 27 prospective jurors, asking if they were familiar with any of those individuals. One individual replied that he was “good friends” with a detective whose name was on the list. When asked if this friendship would affect his ability to be fair and impartial, the prospective juror replied, “I think he’s an honest guy so I would tend to be swayed by what he says.”

The trial court promptly discharged that prospective juror for cause. Defendant, however, asked that all 26 other members of the panel also be removed because the detective was an important witness and they had heard the remark. The trial court denied defendant’s request but later questioned the prospective jurors collectively to determine whether they had been influenced by comments made by any other prospective juror.

When instructing the panel on general principles regarding the trial, the court stated that “[e]ach witness’s testimony must be weighed upon its own merits” and asked “[i]f anyone thinks he or she may have feelings favorable or unfavorable for any witness you are bound by your oath to say that. Does anyone have an affirmative answer to that one?” Two persons expressed concerns about their ability to be fair and were excused by the court. The court then inquired if anyone had “any feeling about the police or have had experiences which would lead you to give a police officer’s testimony any greater or lessor [sic] weight than anyone else’s testimony?” None of the prospective jurors indicated that they were incapable of impartially judging a police officer’s veracity. The next question to the panel was: “is there anything about any answers to any questions or any statements made by any other prospective juror that any of you feel might affect your ability to be fair and impartial in this case?” No one offered an affirmative reply to this question.

Based on the content of the prospective juror’s statement, in conjunction with the court’s inquiries and the responses thereto, there was no legal basis to dismiss the panel for cause. The removed juror’s remark did not create a likelihood of substantial prejudice because it did not relate to defendant’s guilt, refer to his reputation in the community, or provide an expert-like opinion regarding the likelihood that he had been falsely accused — statements which may, depending on the circumstances, warrant additional remedial action by a trial court (see e.g. Mach v Stewart, 137 F3d 630, 633 [9th Cir 1997]; Moore v State, 156 Ga App 92, 93, 274 SE2d 107, 108 [Ct App 1980]). Furthermore, none of the prospective jurors indicated that the comment about the detective would affect his or her ability to be fair and impartial or would cause any of them to give a police officer’s testimony more weight than other witnesses. We therefore conclude that there was no abuse of discretion by the court in declining to excuse the panel.

Accordingly, the order of the Appellate Division should be affirmed.

G.B. Smith, J.

(concurring). I agree with the Court’s conclusion that the order appealed from should be affirmed. After the prosecution set out its reasons for the peremptory strike of a female African-American prospective juror, defendant did not say anything further about her or make an attempt to seek clarification of the prosecution’s ambiguous explanation comparing her to a former state Supreme Court justice. Thus, defendant did not make the specific and timely objections necessary to: (1) apprise the court of the ambiguities inherent in this explanation and of his opposing arguments; and (2) give the court the opportunity to take any necessary remedial action. Thus, by failing to make an objection that the reason proffered by the prosecution was not clearly race/gender-neutral, defendant failed to preserve this argument for appellate review.

It should be emphasized, however, that after a defendant makes out a prima facie case of discrimination in the selection of jurors under Batson, the prosecution’s explanation for the peremptory challenge must be unequivocally race/gender-neutral and related to the particular case to be tried (see Batson v Kentucky, 476 US 79, 98 [1986]). These requirements must be adhered to even where the prosecution gives an explanation that is not clearly race/gender-neutral among explanations that are facially race/gender-neutral.

Here, the Appellate Division concluded that the prosecution met its step two burden of putting forth a race-neutral explanation based on its ruling that “[t]he prosecutor’s disparaging comparison of the panelist to a named individual . . . clearly referred to matters of personality and demeanor, but not race” (People v Wells, 14 AD3d 320, 321 [1st Dept 2005]). This Court concluded “that the record supports the trial court’s determination that the prosecutor’s justifications were race-neutral” and further ruled that: (1) the prosecutor’s reasons for exercising the peremptory challenge focused on the prospective juror’s demeanor; and (2) the “reference to a particular judge, although in cpoor taste’ . . . , was not facially race-based.” (Majority op at 58-59.) Because one of the prosecutor’s reasons for exercising a peremptory strike against this prospective juror was not unequivocally race/gender-neutral, I disagree with the above-mentioned conclusions reached by this Court and the Appellate Division.

As noted in the Court’s opinion, the prosecution cited a number of explanations in support of the peremptory challenge at issue. The explanations are set forth in the following colloquy:

“[prosecutor]: [The prospective juror] answered questions with her hand over her face, her hand over her mouth. That’s something I’m very sensitive to. In my preparation of witnesses, [ ] part of what I tell people when I prepare them to testify [is] when someone is on the stand and talks with her hand over their mouth[,] to people it signifies as a matter of body language something to hide.
“In addition she has sort of an unsettling gaze that I just found difficult to deal with and additionally she also reminded me, I have to say of [a named Supreme Court justice] which made me just somewhat anxious in a sort of an emotional way. So those were my concerns plus she reads she indicated affirmatively she read[s] detective stories, someone like that I think notwithstanding what she said might have expectation of what should be part of a case.
“the court: I find that to be nondiscriminatory.”
(Emphasis added.)

The prosecutor’s statement regarding how the prospective juror reminded her of a named Supreme Court justice, who is also an African-American woman, and how this made the prosecutor “anxious in a sort of [ ] emotional way,” raised issues that should have been pursued during the voir dire. Not only is this statement insulting and irrational, it is wholly ambiguous. The proffered reason, on its face, is not clearly race/gender-neutral. Nor is it clearly race/gender-based, i.e., there is no indication from the prosecutor’s explanation as to what about the prospective juror reminded the prosecutor of the named Supreme Court justice (e.g., the prosecutor did not mention that the demeanor of the prospective juror was similar to that of the named African-American woman). Nor is it clear from the explanation how the prospective juror made the prosecutor “anxious in a sort of [ ] emotional way.” Moreover, the prosecution’s explanation, on its face, was not related to the instant matter.

Based on the foregoing, the trial court, before accepting this explanation as race/gender-neutral (and certainly before its ruling that the explanation was nondiscriminatory), should have conducted an inquiry (or directed that defendant conduct an inquiry) to clarify the prosecution’s ambiguous explanation. Because no such inquiry occurred here, no further explanation of the statement at issue was provided by the prosecution. Without clarification, this statement is not clearly race/gender-neutral. Because all of the explanations for the prosecution’s strike of the prospective juror were not clearly race/gender-. neutral, the trial court should have ruled that the prosecution did not meet its step two obligation under Batson.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Read and R.S. Smith concur with Judge Graffeo; Judge G.B. Smith concurs in a separate opinion.

Order affirmed.

      . Codefendant Grant and two other men involved in this criminal transaction pleaded guilty to various crimes.

        . The duplicity principle is designed to protect the accused against successive prosecutions in violation of the Double Jeopardy Clause (People v First Meridian Planning Corp., 86 NY2d 608, 615 [1995]). It also ensures juror unanimity because
      “[i]f two or more offenses are alleged in one count, individual jurors might vote to convict a defendant of that count on the basis of different offenses; the defendant would thus stand convicted under that count even though the jury may never have reached a unanimous verdict as to any one of the offenses”

        (People v Keindl, 68 NY2d at 418).

      . Although it may be possible that an unexplained comparison of a prospective juror to a specific person could carry an inference of discriminatory intent, if defendant believed that the oblique reference in this case had improper racial overtones that were not facially apparent, defense counsel should have made an adequate record to allow that claim to be considered by the trial court and reviewed on appeal (see People v James, 99 NY2d 264, 270 [2002] [“(a) party asserting a claim under Batson . . . should articulate and develop all of the grounds supporting the claim, both factual and legal” (internal quotation marks omitted)]; People v Smocum, 99 NY2d 418, 423-424 [2003] ).

      . In New York, service on a grand or petit jury is a civil right that cannot be arbitrarily denied (NY Const, art I, § 1; Civil Rights Law § 13 [“No citizen of the state possessing all other qualifications which are or may be required or prescribed by law, shall be disqualified to serve as a grand or petit juror in any court of this state on account of race, creed, color, national origin or sex”]).
      Under the Equal Protection clauses of the federal and New York State constitutions (US Const, 14th Amend, § 1; NY Const, art I, § 11), peremptory challenges may not be used to exclude prospective jurors from jury service on the basis of race or gender (see Batson v Kentucky, 476 US 79 [1986]; J. E. B. v Alabama ex rel T. B., 511 US 127 [1994]; People v Kern, 75 NY2d 638 [1990]; People v Allen, 86 NY2d 101 [1995]). A three-step process was set forth by the United States Supreme Court to address violations of this rule. First, a prima facie case of discriminatory purpose based on a pattern of peremptory challenges (e.g., all Hispanic or male jurors excluded), or other factors, must be established. Second, the prima facie case may be rebutted if the proponent of the strike(s) proffers a race/gender-neutral explanation that is related to the particular case to be tried. Third, the court must determine whether the explanation articulated is a pretext for discrimination (see Batson, 476 US at 96-98; see also J. E. B. v Alabama ex rel. T. B.).

      . At “step two”: (1) the explanation proffered by the prosecution need not be persuasive or plausible (see Purkett v Elem, 514 US 765 [1995]; see also People v Allen, 86 NY2d at 109 [Court stated “step two is met by offering any facially neutral reason for the challenge — even if that reason is ill-founded — so long as the reason does not violate equal protection”]); and (2) “ ‘the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral’ ” (Purkett v Elem, 514 US at 768, quoting Hernandez v New York, 500 US 352, 360 [1991] [plurality op]; 500 US at 374 [O’Connor, J., concurring in judgment]).
      I do not agree with the position that “any” facially neutral explanation, no matter how implausible or ridiculous, as long as it comports with the strictures of equal protection, can rebut a defendant’s prima facie case of race- or gender-based discrimination in jury selection. Under this formulation, there would be an inequity in terms of the burdens to be met by the opponent and proponent of the strike, i.e., the opponent of the strike has to establish a pattern of discrimination, or other discriminatory factors, while the proponent could meet its burden by putting forth rote, facially neutral explanations. Moreover, there is a potential for the trivialization of the voir dire process based on the types of explanations that can be advanced by the proponent of a strike. Specifically, since the improper use of peremptory challenges involves rights of a constitutional dimension, the proffered explanations, which essentially argue that the use of such challenges was proper, should reflect the seriousness of the rights involved. In my view, facially neutral explanations should at least be reasonable and, in accordance with Batson, related to the trial at hand (see Batson, 476 US at 98). Whether the proffered explanation is reasonable does not go to the court’s step three analysis. A “reasonable explanation” requirement would merely ensure that the explanations make sense under the circumstances.

      . As noted above, “Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral” (Purkett v Elem, 514 US at 768). Moreover, this Court’s conclusion that the prosecution’s explanation was race-neutral was based, in part, on its statement that the explanation “was not facially race-based.” These principles should only apply when a race/gender-neutral (or race/gender-based) explanation has been clearly set forth. However, in the instant case, where the prosecutor has put forth an explanation: (1) that is not clearly race/gender-neutral; (2) from which no clear intent of purpose (discriminatory or nondiscriminatory) can be gleaned; and (3) which is not discriminatory on its face, applying these principles necessarily leads to an erroneous result, i.e., a court would be required to find a race/gender-neutral explanation even where one was not clearly present.