Opinion
July 15, 1994
Appeal from the Supreme Court, Erie County, Wolfgang, J.
Present — Balio, J.P., Lawton, Callahan, Doerr and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: We conclude that there is no merit to the contention of defendant that his arrest was not based on probable cause. Defendant matched the victims' detailed descriptions of the individual who committed the robberies and sexual assaults. Additionally, when defendant was observed by the police two hours after the crime in proximity to the crime scene, he acted furtively and attempted to hide in an alley. Thus, the police had sufficient information to support a reasonable belief that an offense had been committed and that defendant was the perpetrator (see, People v. Van De Mortel, 158 A.D.2d 960; People v. Jones, 149 A.D.2d 970, lv denied 74 N.Y.2d 742; People v. Mercado, 117 A.D.2d 627, 628-629).
Defendant further contends that reversal is mandated because the prosecutor failed to give adequate racially neutral explanations for his peremptory challenges to two black jurors (see, Batson v. Kentucky, 476 U.S. 79). Because defense counsel failed to make a Batson challenge until after the jurors, including the alternates, were sworn, his objection was untimely and defendant's contention has not been preserved for review (see, People v. Dunn, 158 A.D.2d 941, 942, lv denied 76 N.Y.2d 734; People v. Harris, 151 A.D.2d 961). In any event, that contention is without merit because the prosecutor proffered sufficient racially neutral reasons for using his peremptory challenges to exclude two black members of the jury panel (see, e.g., People v. Craig, 194 A.D.2d 687, lv denied 82 N.Y.2d 716; People v. Epps, 176 A.D.2d 293, lv denied 78 N.Y.2d 1127).
We agree with defendant, however, that Supreme Court erred in permitting the police officers to testify to the descriptions given by the victims of their assailant because the victims testified to those descriptions (see, People v. Rice, 75 N.Y.2d 929; cf., People v. Huertas, 75 N.Y.2d 487). The court also erred in receiving into evidence the videotape from the bank's security camera because the tape was so indistinct that a jury would have to speculate as to its contents (see, People v Harrell, 187 A.D.2d 453, lv denied 81 N.Y.2d 789). We conclude, however, that those errors are harmless in light of the overwhelming proof of defendant's guilt. There is no reasonable probability that the improperly admitted evidence affected the verdict (see, People v. Crimmins, 36 N.Y.2d 230, 242).