People v. Jeremiah

194 A.D.3d 840

143 N.Y.S.3d 908 (Mem)

The PEOPLE, etc., respondent,

v.Ronald JEREMIAH, appellant.

2018–13964

Ind. No. 3787/17

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

Argued—March 15, 2021

May 12, 2021

Paul Skip Laisure, New York, N.Y. (Samuel Barr of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Avshalom Yotam, and Coby Ballard of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, BETSY BARROS, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (John T. Hecht, J.), rendered October 19, 2018, as amended October 23, 2018, convicting him of criminal sexual act in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review an order of protection issued at the time of sentencing.

ORDERED that upon the appeal from the judgment, as amended, so much of the order of protection as directed that it remain in effect until and including October 18, 2052, is vacated, on the law and as a matter of discretion in the interest of justice, and the matter is remitted to the Supreme Court, Kings County, for a new determination of the duration of the order of protection, consistent herewith; and it is further,

ORDERED that the judgment, as amended, is affirmed.

The defendant contends that on the People's reverse Batson–Kern application (see Batson v. Kentucky, 476 U.S. 79, 106, 106 S.Ct. 1712, 90 L.Ed.2d 69 ; People v. Kern, 75 N.Y.2d 638, 657–658, 555 N.Y.S.2d 647, 554 N.E.2d 1235 ), the Supreme Court erred in determining that the People met their prima facie burden of demonstrating purposeful discrimination on the basis of gender as to the defendant's exercise of peremptory challenges. This contention is unpreserved for appellate review as defense counsel proffered race-neutral explanations for her exercise of peremptory challenges without disputing the issue of whether a prima facie case of gender discrimination had been established (see CPL 470.05[2] ; People v. Carew, 167 A.D.3d 1032, 1032, 88 N.Y.S.3d 895 ; People v. Thomas, 210 A.D.2d 515, 515, 620 N.Y.S.2d 478 ). In any event, the court's determination that the People established, prima facie, that defense counsel was excluding jurors on the basis of gender, is supported by the record (see People v. Grant, 128 A.D.3d 1088, 1088, 9 N.Y.S.3d 403 ; People v. McCoy, 210 A.D.2d 508, 509, 620 N.Y.S.2d 463 ), and therefore will not be disturbed.

The defendant's challenge to the legal sufficiency of the evidence supporting his conviction is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Pearsall, 171 A.D.3d 1096, 1096, 98 N.Y.S.3d 307 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the opportunity of the finder of fact to view the witnesses, hear testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

The defendant's contentions regarding alleged prosecutorial misconduct during summation are unpreserved for appellate review (see CPL 470.05[2] ; People v. Tonge, 93 N.Y.2d 838, 839–840, 688 N.Y.S.2d 88, 710 N.E.2d 653 ; People v. Rivera, 130 A.D.3d 655, 656, 13 N.Y.S.3d 450 ). In any event, most of the challenged remarks either were fair comment on the evidence and the inferences to be drawn therefrom (see People v. Gurdon, 153 A.D.3d 1430, 1431, 61 N.Y.S.3d 333 ; People v. Elder, 152 A.D.3d 787, 789, 59 N.Y.S.3d 134 ), or were responsive to comments made by defense counsel during her summation (see People v. Mairena, 160 A.D.3d 986, 988, 75 N.Y.S.3d 246, affd 34 N.Y.3d 473, 121 N.Y.S.3d 731, 144 N.E.3d 340 ; People v. Katzman, 161 A.D.3d 770, 771–772, 77 N.Y.S.3d 73 ). To the extent some of the remarks were improper, they were not so "flagrant or pervasive" as to have deprived the defendant of a fair trial ( People v. Mapp, 188 A.D.3d 1260, 1261, 132 N.Y.S.3d 806 ).

The defendant contends that the order of protection issued at the time of sentencing failed to credit him for jail-time served. Initially, we note that this issue is unpreserved for appellate review as the defendant did not challenge the duration of the order of protection at sentencing, or move to amend the order of protection anytime thereafter (see People v. Nieves, 2 N.Y.3d 310, 316–317, 778 N.Y.S.2d 751, 811 N.E.2d 13 ; People v. Ramos, 164 A.D.3d 922, 923, 82 N.Y.S.3d 103 ). Never...