People v. Sarkodie

172 A.D.3d 909

100 N.Y.S.3d 63

The PEOPLE, etc., Respondent,

v.Justin SARKODIE, Appellant.

2015–01724

Ind. No. 2544/13

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

Argued—January 7, 2019

May 8, 2019

Paul Skip Laisure, New York, N.Y. (Tammy E. Linn of counsel), for appellant, and appellant pro se.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, Howard B. Goodman, and Diane R. Eisner of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., RUTH C. BALKIN, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Neil Jon Firetog, J.), rendered February 11, 2015, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and sentencing him to an indeterminate term of imprisonment of 25 years to life on the conviction of murder in the second degree, and a concurrent determinate term of imprisonment of 15 years imprisonment, to be followed by 5 years of postrelease supervision, on the conviction of criminal possession of a weapon in the second degree. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed on the conviction of murder in the second degree from an indeterminate term of imprisonment of 25 years to life to an indeterminate term of imprisonment of 20 years to life; as so modified, the judgment is affirmed.

Contrary to the People's contention, the defendant's suppression arguments are preserved for appellate review (see CPL 470.05[2] ; People v. Jones , 164 A.D.3d 1363, 1364, 85 N.Y.S.3d 75 ). Nevertheless, the record demonstrates that the initial stop of the defendant was based on reasonable suspicion, which ripened into probable cause supporting the defendant's subsequent de facto arrest (see People v. Hicks , 68 N.Y.2d 234, 240, 508 N.Y.S.2d 163, 500 N.E.2d 861 ; People v. De Bour , 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ; People v. Lawson , 163 A.D.3d 996, 998, 82 N.Y.S.3d 568 ). Additionally, the defendant's statements to the police, which were given after he was informed of, and waived, his Miranda rights (see Miranda v. Arizona , 384 U.S. 436, 448, 86 S.Ct. 1602, 16 L.Ed.2d 694 ), were voluntarily made (see People v. Mateo , 2 N.Y.3d 383, 413, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Sands , 164 A.D.3d 613, 614, 82 N.Y.S.3d 599 ; People v. Gelin , 128 A.D.3d 717, 718, 8 N.Y.S.3d 424 ). Further, there is no support for the defendant's contention that the hearing testimony of the police officers was incredible, patently tailored to nullify constitutional objections, or otherwise unworthy of belief (see People v. Pleasant , 146 A.D.3d 985, 987, 46 N.Y.S.3d 643 ; People v. Hobson , 111 A.D.3d 958, 959, 975 N.Y.S.2d 682 ). Accordingly, we agree with the Supreme Court's denial of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.

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 jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d at 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 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 was properly denied, as he failed to make the requisite prima facie showing of discrimination (see People v. Childress, 81 N.Y.2d 263, 268, 598 N.Y.S.2d 146, 614 N.E.2d 709 ; People v. Cutting, 150 A.D.3d 873, 874, 56 N.Y.S.3d 315 ; People v. Sydoriak, 147 A.D.3d 791, 792, 46 N.Y.S.3d 222 ; People v. Rudolph, 132 A.D.3d 912, 913, 18 N.Y.S.3d 171 ). Additionally, his contention that the Supreme Court coerced him into the use of a peremptory challenge as to a particular juror is unpreservedfor appellate review (see CPL 470.05[2] ; People v. James, 99 N.Y.2d 264, 272, 755 N.Y.S.2d 43, 784 N.E.2d 1152 ; People v. Grant, 128 A.D.3d 1088, 1091, 9 N.Y.S.3d 403 ; People v. Occhione, 94 A.D.3d 1021, 1022, 942 N.Y.S.2d 185 ), and, in any event, without merit.

The Supreme Court did not improvidently exercise its discretion in admitting evidence relating to the defendant's gang affiliations. Such evidence was probative of the defendant's motive and to explain the relationships of the individuals involved (see People v. Bailey, 32 N.Y.3d 70, 83, 85 N.Y.S.3d 377, 110 N.E.3d 489 ; People v. Bruno, 127 A.D.3d 986, 986, 7 N.Y.S.3d 408 ; People v. Murray, 116 A.D.3d 1068, 1069, 984 N.Y.S.2d 417 ; People v. Guevara, 96 A.D.3d 781, 781, 948 N.Y.S.2d 70 ). The probative value of the testimony outweighed any prejudice resulting from its admission (see People v. Guerrero, 150 A.D.3d 883, 885, 55 N.Y.S.3d 67 ; People v. Lazaro, 125 A.D.3d 1007, 1007, 5 N.Y.S.3d 195 ).

The defendant's contention that the prosecutor made improper comments during summation is partially unpreserved for appellate review, since the defendant did not object to the majority of the remarks he now challenges (see People v. Hankerson, 149 A.D.3d 778, 779, 51 N.Y.S.3d 169 ). In any event, the comments were either fair comment on the evidence and the reasonable inferences to be drawn therefrom or fair response to defense counsel's summation, or otherwise did not deprive the defendant of a fair trial (see People v. Hardy, 166 A.D.3d 645, 88 N.Y.S.3d 54 ; People v. Wells, 161 A.D.3d 1200, 1201, 77 N.Y.S.3d 668 ).

The defendant's claim of ineffective assistance of counsel, raised in his supplemental pro se brief, is without merit (see People v. Benevento , 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi , 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400 ). The defendant failed to...