People v. Jiles

158 A.D.3d 75

68 N.Y.S.3d 787

The PEOPLE of the State of New York, Respondent,

v.Sharad JILES, Defendant–Appellant.

1033

KA 12–02285

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: December 22, 2017

EDELSTEIN & GROSSMAN, NEW YORK CITY (JONATHAN I. EDELSTEIN OF COUNSEL), FOR DEFENDANT–APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH MERVINE OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.

OPINION AND ORDER

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, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Accordingly, we conclude that the judgment of conviction should be affirmed.

I

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, 55 N.Y.S.3d 696, 78 N.E.3d 141 [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.

II

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, 757 N.Y.S.2d 239, 786 N.E.2d 1275 [2003] ; see People v. Dandridge, 26 A.D.3d 779, 780, 809 N.Y.S.2d 353 [4th Dept. 2006], lv. denied 9 N.Y.3d 1032, 852 N.Y.S.2d 18, 881 N.E.2d 1205 [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, 757 N.Y.S.2d 239, 786 N.E.2d 1275 ; People v. Mallory, 121 A.D.3d 1566, 1567, 993 N.Y.S.2d 609 [4th Dept. 2014] ; cf. People v. Bridgeforth, 28 N.Y.3d 567, 575–576, 46 N.Y.S.3d 824, 69 N.E.3d 611 [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, 999 N.Y.S.2d 295 [4th Dept. 2015], lv denied 25 N.Y.3d 1076, 12 N.Y.S.3d 627, 34 N.E.3d 378 [2015], reconsideration denied 26 N.Y.3d 933, 17 N.Y.S.3d 96, 38 N.E.3d 842 [2015] ), i.e., the first prospective juror's status as a psychology student (see People v. Ross, 83 A.D.3d 741, 742, 919 N.Y.S.2d 526 [2d Dept. 2011], lv. denied 17 N.Y.3d 800, 929 N.Y.S.2d 108, 952 N.E.2d 1103 [2011] ; People v. Quiles, 74 A.D.3d 1241, 1243–1244, 904 N.Y.S.2d 469 [2d Dept. 2010] ; see generally People v. Wilson, 43 A.D.3d 1409, 1411, 843 N.Y.S.2d 899 [4th Dept. 2007], lv denied 9 N.Y.3d 994, 848 N.Y.S.2d 611, 878 N.E.2d 1027 [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, 917 N.Y.S.2d 39, 942 N.E.2d 248 [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, 897 N.Y.S.2d 373 [4th Dept. 2010], lv denied 15 N.Y.3d 774, 907 N.Y.S.2d 463, 933 N.E.2d 1056 [2010] ; see generally Smocum, 99 N.Y.2d at 422, 757 N.Y.S.2d 239, 786 N.E.2d 1275 ). 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, 917 N.Y.S.2d 39, 942 N.E.2d 248 [2010], cert denied 563 U.S. 947, 131 S.Ct. 2117, 179 L.Ed.2d 911 [2011] ; People v. Harrison, 124 A.D.3d 499, 499–500, 1 N.Y.S.3d 104 [1st Dept. 2015], lv. denied 27 N.Y.3d 998, 38 N.Y.S.3d 108, 59 N.E.3d 1220 [2016] ; Ross, 83 A.D.3d at 741–742, 919 N.Y.S.2d 526 ). 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, 958 N.Y.S.2d 95 [1st Dept. 2013], lv denied 21 N.Y.3d 1011, 971 N.Y.S.2d 262, 993 N.E.2d 1286 [2013], reconsideration denied 21 N.Y.3d 1077, 974 N.Y.S.2d 326, 997 N.E.2d 151 [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 defendant did not renew his Batson application after the prosecutor failed to challenge the latter panelist (see id. at 412, 958 N.Y.S.2d 95 ; People v. Hardy, 61 A.D.3d 616, 616, 877 N.Y.S.2d 329 [1st Dept. 2009], lv denied 13 N.Y.3d 744, 886 N.Y.S.2d 98, 914 N.E.2d 1016 [2009] ), and we decline to exercise our power to review that claim as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

III

We now turn to defendant's cell site location information, and we conclude that the acquisition of that information was not a search requiring a warrant under either the federal or state constitution. As the People point out, this case involves only historical cell site location information, contained in the business records of defendant's service provider, which placed his phone within a certain cell site "sector" at the time he used the phone to make calls, send text messages, or receive calls or messages.

Under these circumstances, we conclude that the acquisition of the cell site location information was not a search under the Fourth Amendment to the federal constitution because defendant's use of the phone constituted a voluntary disclosure of his general location to his service provider, and a person does not have a reasonable expectation of privacy in information voluntarily disclosed to third parties (see United States v. Graham, 824 F.3d 421, 427–432 [4th Cir. 2016] ; United States v. Carpenter, 819 F.3d 880, 885–887 [6th Cir. 2016], cert granted ––– U.S. ––––, 137 S.Ct. 2211, 198 L.Ed.2d 657 [2017] ; Matter of Application of United States for Historical Cell Site Data, 724 F.3d 600, 613–615 [5th Cir. 2013] ; see also United States v. Thompson, 866 F.3d 1149, 1155–1160 [10th Cir. 2017] ; see generally Smith v. Maryland, 442 U.S. 735, 741–745, 99 S.Ct. 2577, 61 L.Ed.2d 220 [1979] ; People...