[User]
Create a takeaway summary for the following court decision, focusing on the topic of Identification and the subtopic of Independent source. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Williams 2024 NY Slip Op 02128 [41 NY3d 551] April 23, 2024 Troutman, J. Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 7, 2024 [*1] The People of the State of New York, Respondent, v David Williams, Appellant. Argued March 13, 2024; decided April 23, 2024 People v Williams , 203 AD3d 612 , reversed. {**41 NY3d at 553} OPINION OF THE COURT Troutman, J. On this appeal, we address whether Supreme Court erred when it denied defendant's motion for an independent source hearing and, instead, used an undercover police officer's prior testimony at a probable cause hearing to render a determination on whether the officer had an independent source for his prospective in-court identification of defendant. We hold that the trial court erred in admitting the undercover officer's in-court identification without a hearing record sufficient to support an independent source determination for the identification. Consequently, under the circumstances of this case, we reverse the order of the Appellate Division and order a new trial to be preceded by an independent source hearing. I. An undercover police officer bought $40 worth of heroin through an intermediary during a buy-and-bust operation in upper Manhattan in December 2016. He did not meet the seller face-to-face. Instead, the undercover followed "several feet" behind the intermediary and the seller as they walked along the avenue. He was far enough away that he could not hear what they said to each other. The intermediary returned from {**41 NY3d at 554} interacting with the seller and handed the undercover three glassines of heroin, after which the undercover reported to his support team that the [*2] "actual dealer" was wearing black pants, a white sweater, and a black hat. Minutes later, the police arrested defendant nearby. The undercover then made a confirmatory identification of defendant as the seller at the precinct parking lot a half hour after the arrest. Defendant filed an omnibus motion contending that the police lacked probable cause to arrest him and that, as a result, the court should suppress the undercover officer's confirmatory identification, the prerecorded buy money, and defendant's cell phone. The motion stated that, if it was granted, defendant would move for an independent source hearing where the People must establish that the undercover had sufficient opportunity to observe defendant during the commission of the offense to enable him to make an in-court identification of defendant at trial. The court ordered a hearing "limited to the issue of whether there was probable cause to arrest defendant pursuant to People v Gethers , 86 NY2d 159 (1995)." [FN1] At the hearing, the arresting officer testified regarding the circumstances surrounding defendant's arrest, and the undercover officer testified about his observations during the buy-and-bust and his subsequent confirmatory identification of defendant at the precinct. Inasmuch as the hearing was held for the limited purpose of determining probable cause and the suppression of evidence, the undercover officer's testimony about the seller's appearance was limited. The undercover testified that he had never interacted with the seller before the date in question and did not interact with the seller directly during the buy-and-bust. Although the undercover described the seller's clothes, he did not provide a physical description of the seller. He did, however, testify about his close proximity to the seller—close enough to hear that the intermediary and the seller were having a conversation, but not their words. Nevertheless, his testimony did not address how long the seller was within his sight or the nature of his confirmatory identification of defendant. After the hearing, Supreme Court ruled that the police lacked probable cause to arrest defendant, finding the arresting {**41 NY3d at 555} officer's testimony unreliable and "tailored to meet constitutional muster." The court also suppressed, as fruits of the illegal arrest, both the undercover officer's confirmatory identification and the physical evidence recovered from defendant. Defendant then moved for an independent source hearing to determine whether, despite the suppression of his confirmatory identification, the undercover officer would be allowed to identify defendant at trial. Denying the motion, the court reasoned that a separate hearing was not necessary because the undercover's testimony at the probable cause hearing "demonstrate[d] clear and convincing evidence 'that the undercover's observations before and during the alleged sale provided an independent source for' an in-court identification of Defendant at trial." After the undercover officer identified defendant at trial, defendant was convicted of third-degree criminal sale of heroin and sentenced to six years in prison. The Appellate Division affirmed, concluding that "the hearing court providently exercised its discretion in denying defendant's request for a separate independent source hearing" based on the testimony at the probable cause hearing about the undercover officer's opportunity to observe defendant at the time of the drug sale and the description of the confirmatory identification (203 AD3d 612, 613 [1st Dept 2022]). Consequently, the Appellate Division concluded that the undercover officer was properly permitted to identify defendant in court. A Judge of this Court granted defendant leave to appeal (39 NY3d 965 [2022]). We now reverse and order a new trial to be preceded by an independent source hearing on the admissibility of the undercover officer's in-court identification. II. [1] As an initial matter, contrary to the prosecution's contention otherwise, the question of whether defendant was entitled to a separate independent source hearing is preserved. In his omnibus motion, defendant requested that, in the event the court suppressed the undercover officer's confirmatory identification as the product of an unlawful seizure, it should hold an independent-source hearing "pursuant to People v Gethers (86 NY2d 159 [1995])." Defendant then renewed his request when the court suppressed the confirmatory identification, again citing Gethers (86 NY2d at 159). These measures "made the {**41 NY3d at 556} defense's 'position' . . . 'known to the court,' thereby furnishing" the court "with an opportunity" to provide him with the relief he sought ( People v Sanders , 39 NY3d 216 , 220 n [2023], quoting CPL 470.05 [2]). In response, the court "expressly decided" against holding a separate hearing. A preserved "question of law" is therefore before us (CPL 470.05 [2]). [*3] III. Turning to the merits, the exclusionary rule provides that "when the police have acted illegally, evidence which has been come at by exploitation of that illegality should be suppressed" ( People v Gethers , 86 NY2d 159, 161-162 [1995] [internal quotation marks omitted], quoting Wong Sun v United States , 371 US 471, 488 [1963]). One commonly advanced corollary to this rule is the independent source doctrine, under which a court need not suppress evidence if the People demonstrate that it was " 'acquired by means sufficiently distinguishable from the arrest to be purged of the illegality,' i.e., that the taint of the illegal arrest was 'attenuated' " ( People v Jones , 21 NY3d 449 , 455 [2013] [citations omitted]). Applying these principles to identifications, "once the pretrial identification . . . is shown to be impermissible and improper, any in-court identifications, though not per se excludable, are not to be received in evidence 'without first determining that they were not tainted by the illegal [identification] but were of independent origin' " ( People v Ballott , 20 NY2d 600, 606 [1967]). To accomplish this a court must hold a formal pretrial "hearing as to independent source" ( People v Burts , 78 NY2d 20, 24 [1991]; see People v Marshall , 26 NY3d 495 , 506 [2015]; Gethers , 86 NY2d at 163). A court may conduct this hearing in conjunction with another pretrial hearing, such as a suppression hearing, or as its own separate hearing. No matter the moniker given to the hearing, it must "give the People an opportunity to prove by 'clear and convincing evidence' that the in-court identification was based upon observations of the suspect other than the [illegal] identification" ( Ballot , 20 NY2d at 606). "Only if the prosecution can establish this may the in-court identification be admitted for the consideration of the jury" ( id. ). Otherwise, "the court must exclude that identification" ( id. at 606-607). The need for a hearing as to independent source extends to cases like this where a confirmatory identification is the product of an illegal arrest. As we held in Gethers , a police officer's {**41 NY3d at 557} in-court identification of a defendant is " 'improperly admitted [where] there was no evidence at the suppression hearing of an independent source' upon which the hearing court could rely to find that the in-court identification was ' "come at by . . . means sufficiently distinguishable to be purged of the primary taint" ' " of the defendant's illegal arrest (86 NY2d at 163 [citations omitted]). In evaluating whether the People have met their burden to demonstrate by clear and convincing evidence a source independent from the illegal arrest, courts should consider any information relevant to whether there is a "causal relationship between the arrest and the identification" ( Gethers , 86 NY2d at 163), including the length and quality of the witness's opportunity to observe the defendant prior to the arrest, the accuracy of the witness's description of the defendant prior to the arrest, and the witness's prior familiarity with the defendant ( see Ballot , 20 NY2d at 607; see also United States v Wade , 388 US 218, 241 [1967]). [FN2] Courts should also consider the nature and circumstances of the suppressed identification as they relate to the likelihood that the suppressed identification would taint any subsequent identification ( Gethers , 86 NY2d at 163; see United States v Crews , 445 US 463, 472-473 [1980]; People v Brnja , 50 NY2d 366, 369 n 1 [1980]; see also Marshall , 26 NY3d at 508 n 3). [2] Here, the testimony adduced at the limited suppression hearing focused primarily on whether there was probable cause for defendant's arrest, which turned only on whether defendant matched the undercover officer's description of the seller as a black male wearing a white top and jeans. The undercover's testimony at the suppression hearing was devoid of any proof that his in-court identification would be derived from his pre-arrest interaction with the seller, rather than the postarrest confirmatory identification of defendant. While the undercover officer described the seller's clothes, this did not establish a reliable basis for an in-court identification of defendant. The undercover provided no other details from which the court could conclude that he had a meaningful opportunity to view the seller at the time of the buy. He testified that he had no {**41 NY3d at 558} prior interactions with the seller, and he did not testify as to any physical description that he may have given the arresting officers. Nor did his testimony provide any description of the confirmatory identification procedure, such that the court could compare the two interactions and be assured that the in-court identification could be made without relying on the suppressed identification. As such, the hearing did [*4] not explore the undercover's pre-arrest observations, if any, of the seller's face, physical features, complexion, build, hairstyle, or height during the buy-and-bust operation. The People's reliance on our decision in People v Marshall (26 NY3d 495 [2015]) is unavailing. In Marshall , we held that a trial court improperly denied a defendant's request for a full Wade hearing to determine the suggestiveness of a prosecutor's pretrial display of the defendant's arrest photograph to the complainant ( see id. at 507-508). We decided that the error did not require reversal, however, because there was an independent source for the complainant's in-court identification of the defendant. That independent source included the complainant's testimony at the limited "pre- Wade " hearing describing her assailant—indicating that she saw the defendant at the hospital by chance and recognized the defendant as the assailant prior to the photo display—and asserting that the photo display did not affect her independent recollection or recognition of the defendant ( see Marshall , 26 NY3d at 506-508). Consequently we concluded, "While there is some support in the hearing transcripts for defendant's argument that the hearing was circumscribed, the record also establishe[d] that defense counsel did, in fact, cross-examine complainant about the hospital identification" ( id. at 509). Additionally, we held that the defendant's request for another hearing—despite evidence of an independent source of complainant's identification—encouraged "the unnecessary expenditure of judicial resources" ( id. ). By comparison, here, the People presented practically no testimony regarding the undercover officer's observations of the seller's appearance to support a determination that he had a sufficient independent basis to identify defendant in court. This error requires reversal. Because the record of the probable cause hearing provided an insufficient basis for an independent source determination, defendant was entitled to an independent source hearing, as requested. In light of our determination, we do not reach defendant's remaining arguments. {**41 NY3d at 559} Accordingly, the order of the Appellate Division should be reversed and a new trial ordered, to be preceded by an independent source hearing. Chief Judge Wilson and Judges Rivera, Garcia, Singas, Cannataro and Halligan concur. Order reversed and a new trial ordered, to be preceded by an independent source hearing. Footnotes Footnote 1: Although the court initially termed it a " Dunaway / Wade " hearing, it was later confirmed that there was to be no Wade component to the hearing. Footnote 2: Unlike in the context of determining whether an identification is suggestive, the "nature of a police officer's duties, special training[,] and experience" on their own "simply have no relevance in a determination of whether an identification is the product of an illegal arrest" ( Gethers , 86 NY2d at 163).

[Assistant]
Trial court
erred in admitting the undercover officer’s in-court identification without a
hearing record sufficient to support an independent source determination
for the identification.


[User]
Create a takeaway summary for the following court decision, focusing on the topic of Jury Selection and Jurors and the subtopic of Batson. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Flynn 2024 NY Slip Op 06079 [233 AD3d 1087] December 5, 2024 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 12, 2025 [*1] The People of the State of New York, Respondent, v Bilal A. Flynn, Appellant. Kathy Manley, Selkirk, for appellant. F. Paul Battisti, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent. Fisher, J. Appeal from a judgment of the County Court of Broome County (Joseph F. Cawley, J.), rendered June 17, 2020, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree (seven counts), criminal possession of a controlled substance in the fourth degree and criminally using drug paraphernalia in the second degree (two counts). Defendant was charged by indictment with seven counts of criminal possession of a controlled substance in the third degree (counts 1-7), criminal possession of a controlled substance in the fourth degree (count 8) and two counts of criminally using drug paraphernalia in the second degree (counts 9 and 10), following the recovery of, among other things, cocaine, heroin, drug paraphernalia, two cell phones and almost $1,000 in cash during the execution of a search warrant on a residence owned by his girlfriend. Defendant moved to suppress the evidence seized pursuant to the search warrant, which such motion was denied by County Court. Following a jury trial, defendant was convicted as charged. County Court thereafter sentenced defendant, as a second felony offender, to a concurrent prison term of nine years, to be followed by three years of postrelease supervision, for each of his convictions of counts 1 through 7, and lesser concurrent terms of incarceration for his remaining convictions. Defendant appeals. Defendant challenges the legal sufficiency and weight of the evidence as to counts 4, 5, 7 and 8. Initially, although defendant failed to preserve his challenge to the legal sufficiency of the evidence, [FN1] in conducting a weight of the evidence analysis, "we nevertheless must determine whether the People proved each element of the crimes beyond a reasonable doubt" ( People v Leppanen , 218 AD3d 995 , 996 [3d Dept 2023], lv denied 40 NY3d 1081 [2023]). At trial, the People presented the testimony of several law enforcement officers who were involved in the investigation and the execution of the search warrant, as well as corresponding documentary, photographic and physical evidence. According to the testimonial evidence, upon execution of the search warrant, defendant was found alone in the residence and in a common area. A search of a closet in the primary bedroom resulted in the discovery of three plastic baggies containing different quantities of crack cocaine and powdered cocaine, and one "vented" jar containing a plastic baggie of heroin sitting on a quantity of rice. Some of the baggies were folded into a "knotted wrap" or "corner wrap," and all of these substances were confirmed in field tests, and then each weighed both in its original packaging and then by itself. A forensic scientist with the Southern Tier Crime Laboratory testified that, out of the four plastic baggies provided to her, she tested the two largest packages, in which one tested positive for the presence of cocaine and the other for heroin; each substance also had an aggregate weight in excess of one [*2] -half ounce. [FN2] A detective testified that drug sellers typically use knotted wraps to sell drugs and that the drug paraphernalia discovered in the closet next to the baggies—including two digital scales with a white residue, razor blades, two plastic "scoop" spoons, a dollar bill, rice, an empty jar, two plastic straws and a box of plastic fold-top sandwich bags—was consistent with drugs being sold. According to the detective, defendant was also searched and found to be in possession of approximately $1,000 in cash—the overwhelming majority of which were $20 bills, a common bill found on individuals when drugs are being sold. Other testimony indicated that a subsequent search of defendant's cell phones revealed a photograph taken of a knotted wrap and messages by defendant using certain drug vernacular, including known street names for drugs, and offers for specific amounts of drugs with prices that were consistent with what was recovered in the search. Much of this evidence was corroborated by the girlfriend, who testified for the People pursuant to a cooperation agreement, and who confirmed the types of drugs present and further explained that defendant would purchase the drugs in bulk, store them in the closet, and repackage the drugs into smaller baggies for selling as seen in the messages on his cell phone. For his part, defendant testified that he had been warned by others about the girlfriend selling drugs, but ignored the warnings, had no idea that drugs were being sold in the home, and he had "never" seen her packaging drugs. He further denied being in possession of any of the drugs and ever going to purchase drugs in bulk to resell. Relating to the content on the cell phones, he contended that the drug-related communications had been made by his girlfriend and admitted that he took the photograph of a knotted wrap, but that he did so because he found it in the house, and he had sent it to the mother of his child. To that end, he further testified that he "loved" the house and really wanted to purchase it from the girlfriend's mother, but that she changed her mind and decided to sell it to her daughter instead of him—although he had made one payment toward purchasing it. He further testified that he was engaged in multiple businesses, and his full-time job was demanding and caused him to travel for long periods of time—including during the relevant time period, in which he was also hospitalized in Brooklyn for pneumonia. In challenging the weight of the evidence, defendant contends that the two baggies of alleged drugs tied to counts 4, 5, 7 and 8 were never lab tested and, therefore based on People v Swamp (84 NY2d 725, 733 [1995]), the weight of the evidence is insufficient to sustain these convictions beyond a reasonable doubt. As charged here, defendant's convictions for possessing cocaine must be based upon evidence showing that he either knowingly and unlawfully possessed any amount "with intent to sell it" under counts 4 [*3] and 5 (Penal Law § 220.16 [1]), possessed "one-half ounce or more" of the drug under count 7 (Penal Law § 220.16 [12]), or possessed "one-eighth ounce or more" under count 8 (Penal Law § 220.09 [1]). Although a contrary verdict as to these four counts would not have been unreasonable given the failure to obtain evidence of a chemical analysis of these two pieces of evidence, contrary to defendant's contentions, the failure to conduct a lab test does not automatically result in a reversal of the charges when conducting a weight of the evidence review. As this Court has recognized in People v Van Hoesen (12 AD3d 5 [3d Dept 2004], lv denied 4 NY3d 804 [2005]), the Court of Appeals did not hold in People v Swamp that a formal laboratory test was required to prove guilt beyond a reasonable doubt—only that a defendant may not be found guilty beyond a reasonable doubt based " 'solely' " on the result of a field test ( People v Van Hoesen , 12 AD3d at 9 n 2; quoting People v Swamp , 84 NY2d at 733; see Matter of Angel A. , 92 NY2d 430, 435 [1998]). Here, we have more than just a positive field test—which was performed by an experienced detective, and where his testimony regarding the field test and his subsequent weighing of each drug was uncontroverted at trial ( see Matter of Angel A. , 92 NY2d at 435). For instance, each baggie was found in the same closet as the lab-confirmed substances—one of them even in the same black pouch—and "the jury could reasonably infer from the positive results of those tests that the remaining [packages], which were recovered . . . at the same time, also contained a controlled substance since the untested" substances were in the same style of packing and the contents appear to be similar in nature ( People v Gillyard , 70 AD3d 854 , 855 [2d Dept 2010], lv denied 14 NY3d 840 [2010]). The other baggie was packaged into a knotted wrap and was found in a silver lock box on the same bedroom closet shelf as the tested drugs, and contained the razor blades, scales and box of sandwich baggies, therefore permitting the jury to infer defendant's intent to sell it from the quantity seized, wrapping materials and the large sum of cash that was found on his person ( see People v Smith , 201 AD3d 1126 , 1130 [3d Dept 2022], lv denied 38 NY3d 1035 [2022]; see also People v Oates , 222 AD3d 1271 , 1273 [3d Dept 2023]). Further testimony confirmed the appearance and form of the substances to be powdered cocaine and crack cocaine, not just from multiple law enforcement officers and two drug task force detectives who had experience handling each narcotic, but also of the girlfriend. Indeed, based on her familiarity and knowledge of drugs, she confirmed that the substances in the untested knotted wraps were powdered cocaine and crack cocaine that defendant would sell to customers ( see People v Christopher , 161 AD2d 896, 897-898 [3d Dept 1990], lv denied 76 NY2d 786 [1990]; see generally People v Cruz , 298 AD2d 905, 905 [4th Dept 2002], lv denied 99 [*4] NY2d 557 [2002]). The girlfriend further testified as to the process of preparing the drugs for sale, specifically that she observed defendant on prior occasions take out the substances, weigh them and then package them in a knotted wrap for sale to customers as crack cocaine or powdered cocaine—and she would sometimes complete the sales for him ( see People v Fulton , 28 AD3d 1180 , 1181 [4th Dept 2006], lv denied 7 NY3d 756 [2006]). She also translated multiple text messages from defendant's phone, confirming certain communications were referring to the sale of the same drugs that were recovered in the search. Critically, at no point during the trial did defendant challenge that the substances were not controlled substances. Accordingly, when viewing this evidence in a neutral light, we cannot say that the verdict with respect to the challenged convictions under counts 4, 5, 7 and 8 were against the weight of the evidence ( see People v Smith , 201 AD3d at 1130-1131; People v Gillyard , 70 AD3d at 855; People v McGriff , 201 AD2d 672, 673 [2d Dept 1994], lv denied 83 NY2d 913 [1994]; People v Christopher , 161 AD2d at 897-898; see also People v Imes , 226 AD3d 1080 , 1082 [3d Dept 2024], lv denied 41 NY3d 1019 [2024]). To this further point, defendant contends that he received ineffective assistance of counsel because his attorney failed to, among other things, challenge the lack of a lab test for the two baggies of substances that were not lab tested and failed to preserve other key issues at trial. We disagree. "A claim of ineffective assistance of counsel must be supported with proof that the attorney failed to provide meaningful representation and that there were no strategic or other legitimate explanations for counsel's allegedly deficient conduct" ( People v Njoku , 218 AD3d 1047 , 1051 [3d Dept 2023] [internal quotation marks and citations omitted], lv denied 40 NY3d 1093 [2024]). The record before us reveals a very capable performance by trial counsel, who presented a cogent theory at trial that the girlfriend had been the one who orchestrated the drug sales unbeknownst to defendant and that the People overstated the amount of time he spent at the residence and was around the drugs, but that, following their arrests, the girlfriend and her mother ultimately turned on defendant in order to get her a lesser sentence. In doing so, defense counsel appropriately highlighted that the investigators were entirely unaware of defendant until after the execution of the search warrant—of which, such warrant had only mentioned the girlfriend—and that defendant was in the process of purchasing the house from the girlfriend's mother before the incident. Trial counsel's strategy also was aimed at raising reasonable doubt on defendant's motivation and ability to commit the crimes, presenting evidence that defendant had no incentive to sell drugs because he had multiple successful jobs and a large monetary settlement from a lawsuit, and that he was not originally [*5] from the area and had few local ties—unlike the girlfriend ( see People v Truitt , 213 AD3d 1145 , 1151 [3d Dept 2023], lv denied 39 NY3d 1144 [2023]). Although defendant criticizes trial counsel for not focusing his strategy on the lack of a chemical analysis on two pieces of evidence, as discussed above, this argument lacks merit given the overwhelming evidence at trial and other lab-tested drugs and drug paraphernalia found alongside the nonconfirmed substances ( see People v Meadows , 183 AD3d 1016 , 1023 [3d Dept 2020], lv denied 35 NY3d 1047 [2020]), and, therefore, is "merely reflective of defendant's disagreement as to trial counsel's strategies and tactics weighed with the benefit of hindsight" ( People v Wilkins , 216 AD3d 1359 , 1365 [3d Dept 2023] [internal quotation marks, brackets and citation omitted], lv denied 40 NY3d 1000 [2023]). When considering the evidence, law and circumstances of this case, we cannot say that defendant was deprived of meaningful representation ( see People v Calafell , 211 AD3d 1114 , 1120 [3d Dept 2022], lv denied 39 NY3d 1077 [2023]; People v Machia , 206 AD3d 1272 , 1277-1278 [3d Dept 2022], lv denied 38 NY3d 1151 [2022]; see also People v Burton , 215 AD3d 1054 , 1063 [3d Dept 2023], lv denied 40 NY3d 927 [2023]). Defendant's remaining contentions do not warrant prolonged discussion. Defendant's challenge to the indictment as duplicitous and multiplicitous is unpreserved ( see People v Agan , 207 AD3d 861 , 862 [3d Dept 2022], lvs denied 38 NY3d 1186 [2022], 39 NY3d 939 [2022]; People v Shabazz , 177 AD3d 1170 , 1172-1173 [3d Dept 2019]), and nevertheless without merit ( see People v Lee , 225 AD3d 1001 , 1001 [3d Dept 2024]; People v LaPierre , 189 AD3d 1813 , 1817 [3d Dept 2020], lv denied 36 NY3d 1098 [2021]). Defendant's contention that a key witness refused to testify because she had been intimidated by the prosecutor is unsupported in the record before us, as "not every contact between a government agent and a potential defense witness constitutes a substantial interference with the choice to testify" ( People v Perkins , 203 AD3d 1337 , 1340 [3d Dept 2022] [internal quotation marks and citations omitted], lv denied 38 NY3d 1035 [2022]). Lastly, as there is no record of jury selection for our review, defendant's contentions relating to a specific juror are better developed via a CPL article 440 motion ( see People v Davis , 200 AD3d 1200 , 1207 [3d Dept 2021]). Defendant's remaining contentions have been examined and found to be lacking in merit or rendered academic. Aarons, J.P., Reynolds Fitzgerald, McShan and Mackey, JJ., concur. Ordered that the judgment is affirmed. Footnotes Footnote 1: At the close of the People's proof and again at the close of defendant's proof, County Court reserved defendant's right to make the necessary motions. However, the record before us fails to demonstrate whether defendant ultimately made such application. Footnote 2: This testing related to only counts 1, 2, 3 and 6. The forensic scientist testified that the crime lab policy was to only test evidence relating to the highest counts, and she therefore did not test the remaining two pieces of evidence relevant to counts 4, 5, 7 and 8.

[Assistant]
Prosecutor
used peremptory challenge to strike prospective juror who had self-
reported that she was a member of the NAACP. But defendant did not adequately preserve Batson issue. In response to defendant's initial
application, the trial court noted that the juror did not appear to be African-
American and asked whether the application was based solely on her
NAACP membership. Defense counsel accepted the court's assessment
about the juror & did not develop a prima facie showing of discrimination.