People v. Sylvestre

178 A.D.3d 863

116 N.Y.S.3d 98

The PEOPLE, etc., Respondent,

v.Rosebert SYLVESTRE, Appellant.

2016–02654

Ind.No.1441/14

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

Argued - September 24, 2019

December 11, 2019

Jillian S. Harrington, Staten Island, NY, for appellant.

Madeline Singas, District Attorney, Mineola, N.Y. (Kevin C. King and William H. LaGrange of counsel), for respondent.

RUTH C. BALKIN, J.P., JEFFREY A. COHEN,ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Patricia A. Harrington, J.), rendered March 4, 2016, convicting him of driving while intoxicated and speeding, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was stopped by New York State Troopers after the vehicle he was driving was observed traveling at a speed of approximately 90 miles per hour on the Northern State Parkway. Upon approaching the defendant's vehicle, one of the Troopers smelled the strong odor of alcohol, and observed that the defendant had red, bloodshot eyes and his speech was slurred. When asked by the Trooper if he had been drinking, the defendant admitted that he had consumed two beers that evening. The defendant was thereafter administered three separate standardized field sobriety tests, and he failed all three. He was then asked to take a breathalyzer test, but the defendant failed to blow adequately into the breathalyzer despite being given two attempts to provide a sample. He was then placed under arrest, and was subsequently charged with, inter alia, driving while intoxicated, reckless driving, and speeding. Following a jury trial, the defendant was acquitted of reckless driving, but convicted of driving while intoxicated and speeding.

We agree with the Supreme Court's denial of the defendant's Batson challenges (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, as the defendant failed to make the requisite prima facie showing of discrimination. It is incumbent upon a party making a Batson challenge to articulate and develop all of the grounds supporting the claim, both factual and legal, during the colloquy in which the objection is raised and discussed (see People v. Childress, 81 N.Y.2d 263, 268, 598 N.Y.S.2d 146, 614 N.E.2d 709 ). On this record, the defendant's reliance on the number of peremptory challenges exercised by the People against black prospective jurors, without more, was insufficient to make a prima facie showing (see People v. Steele, 79 N.Y.2d 317, 325, 582 N.Y.S.2d 950, 591 N.E.2d 1136 ; People v. Rudolph, 132 A.D.3d 912, 913, 18 N.Y.S.3d 171 ; People v. Cuesta, 103 A.D.3d 913, 915, 959 N.Y.S.2d 744 ; People v. Scott, 70 A.D.3d 977, 977, 897 N.Y.S.2d 138 ).

The defendant's contentions that the Supreme Court's handling of a certain jury note violated principles set forth by the Court of Appeals in People v. O'Rama , 78 N.Y.2d 270, 277–278, 574 N.Y.S.2d 159, 579 N.E.2d 189 are unpreserved for appellate review (see People v. Morris, 27 N.Y.3d 1096, 1098, 36 N.Y.S.3d 52, 55 N.E.3d 1025 ; People v. Nealon, 26 N.Y.3d 152, 161–162, 20 N.Y.S.3d 315, 41 N.E.3d 1130 ). Under the circumstances, we decline to reach these contentions in the exercise of our interest of justice jurisdiction (see People v. Nealon, 147 A.D.3d 784, 784, 45 N.Y.S.3d 801 ; People v. Bedeau, 129 A.D.3d 853, 853, 9 N.Y.S.3d 883 ).

The defendant's contention that certain testimony admitted at trial was unduly prejudicial and deprived him of a fair trial is unpreserved for appellate review (see CPL 470.05[2] ) and, in any event, without merit.

The defendant's contention that certain remarks made by the prosecutor in...