People v. Cruz
738 N.Y.S.2d 201
N.Y. App. Div.
2002
Check Treatment

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered October 3, 2000, convicting defendant, after a jury trial, of robbery in the first and second degrees, and sentencing him to concurrent terms of 7 and 3V2 years, respectively, unanimously affirmed.

Defendant’s suppression motion was properly denied in all respects. As they followed defendant and his codefendant and kept them under surveillance, the police did nothing to limit their freedom of movement (see, People v Howard, 50 NY2d 583, 592, cert denied 449 US 1023; People v Thornton, 238 AD2d 33, 36; see also, Michigan v Chesternut, 486 US 567, 569, 575-576). Accordingly, the police were not in “pursuit” of the two men prior to the time that the victim arrived and pointed them out, creating, at the very least, reasonable suspicion for a stop.

The identification was not unduly suggestive. The hearing record establishes that defendant was not surrounded by police until after the victim had spontaneously pointed him out without police suggestion (see, People v Ortiz, 90 NY2d 533, 538), and defendant’s argument to the contrary impermissibly conflates the hearing and trial records. In any event, the police presence would not have rendered the identification unduly suggestive (People v Duuvon, 77 NY2d 541, 545). *176The court properly exercised its discretion in denying defendant’s request to dismiss the entire panel after several prospective jurors, all of whom were excused, made allegedly prejudicial comments (see, People v Clark, 262 AD2d 233, lv denied 93 NY2d 1016; People v Miller, 239 AD2d 787, 790, affd 91 NY2d 372). The voir dire record establishes that a fair and impartial jury was selected nonetheless.

We perceive no basis for a reduction of sentence.

Defendant’s remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them. Concur — Andrias, J.P., Saxe, Rosenberger, Wallach and Buckley, JJ.