People v. Johnson

171 A.D.3d 1089

98 N.Y.S.3d 598

The PEOPLE, etc., Respondent,

v.Willie JOHNSON, Appellant.

2017–01075

Ind. No. 1179–15

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

Argued—January 14, 2019

April 17, 2019

Laurette D. Mulry, Riverhead, N.Y. (Edward E. Smith, San Francisco, of counsel), for appellant.

Timothy D. Sini, District Attorney, Riverhead, N.Y. (Alfred J. Croce and Glenn Green of counsel), for respondent.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Barbara Kahn, J.), rendered January 10, 2017, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

We agree with the County Court's determination to deny the defendant's Batson challenge (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 ) to the prosecutor's exercise of peremptory challenges to strike two black prospective jurors. Once the prosecutor set forth a race-neutral reason for the peremptory strikes, the defendant failed to meet his burden of persuasion that the reason was pretextual (see People v. Hecker, 15 N.Y.3d 625, 663–664, 917 N.Y.S.2d 39, 942 N.E.2d 248 ; People v. Smocum, 99 N.Y.2d 418, 422, 757 N.Y.S.2d 239, 786 N.E.2d 1275 ; People v. Gonsalez, 144 A.D.3d 841, 842, 40 N.Y.S.3d 542 ; People v. Allen, 71 A.D.3d 778, 779, 896 N.Y.S.2d 448 ). The defendant's claim that the prosecutor discriminated against "young adults" in the exercise of his peremptory challenges is unpreserved for appellate review, as it was not raised before the County Court (see People v. Stephens, 84 N.Y.2d 990, 992, 622 N.Y.S.2d 502, 646 N.E.2d 804 ; People v. Salazar, 132 A.D.3d 418, 418, 17 N.Y.S.3d 288 ; People v. Smith, 226 A.D.2d 566, 566, 641 N.Y.S.2d 549, 550). In any event, this contention is without merit, as "young adults" are not a cognizable group with regard to discrimination in jury selection (see People v. Minucci, 68 A.D.3d 1017, 1018, 891 N.Y.S.2d 436 ; People v. Assi, 63 A.D.3d 19, 28, 877 N.Y.S.2d 231, affd 14 N.Y.3d 335, 902 N.Y.S.2d 6, 928 N.E.2d 388 ). Furthermore, defense counsel's failure to renew his Batson challenge did not constitute ineffective assistance of counsel (see generally People v. Virapen, 147 A.D.3d 981, 983, 47 N.Y.S.3d 426 ; People v. Hale, 147 A.D.3d 975, 976, 48 N.Y.S.3d 159 ).

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 (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ). 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 at 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the 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 the prosecutor's summation remarks are largely unpreserved for appellate review (see CPL 470.05[2] ; People v. Dien, 77 N.Y.2d 885, 568 N.Y.S.2d 899, 571 N.E.2d 69 ; People v. Giddens, 161 A.D.3d 1191, 1193, 78 N.Y.S.3d 355 ; People v. Rosario, 149 A.D.3d 982, 983, 50 N.Y.S.3d 307 ). In any event, the challenged summation remarks were fair comment upon the evidence, responsive to defense counsel's summation, or otherwise do not warrant reversal (see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 ; People v. Carter, 152 A.D.3d 786, 786, 56 N.Y.S.3d 471 ; People v. Johnson, 127 A.D.3d 785, 786, 4 N.Y.S.3d 541 ; People v. Harris, 117 A.D.3d 847, 859, 985 N.Y.S.2d 643, affd 26 N.Y.3d 1, 18 N.Y.S.3d 583, 40 N.E.3d 560 ). Furthermore, defense counsel's failure to object to those remarks did not constitute ineffective assistance of counsel (see People v. Giddens, 161 A.D.3d at 1194, 78 N.Y.S.3d 355 ; People v. McGowan, 111 A.D.3d 850, 851, 975 N.Y.S.2d 147 ).

The defendant's contention that the County Court violated the procedure for complying with CPL 310.30 set forth in People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 is unpreserved for appellate review (see CPL 470.05[2] ; People v. Clark, 28 N.Y.3d 556, 566, 46 N.Y.S.3d 817, 69 N.E.3d 604 ; People v. Mack, 27 N.Y.3d 534, 537, 36 N.Y.S.3d 68, 55 N.E.3d 1041 ). In any event, the court responded meaningfully to the jury's inquiry (see CPL 310.30 ).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).

BALKIN, J.P., CHAMBERS, COHEN and BRATHWAITE NELSON, JJ., concur.