Opinion
KA 03-00729.
November 21, 2003.
Appeal from a judgment of Supreme Court, Monroe County (Doyle, J.), entered October 21, 1993, convicting defendant after a jury trial of, inter alia, murder in the second degree (three counts).
Donald M. Thompson, Rochester, for Defendant-Appellant.
Howard R. Relin, District Attorney, Rochester (Wendy Evans Lehmann of Counsel), for Plaintiff-Respondent.
Before: Present: Pine, J.P., Hurlbutt, Kehoe, Lawton, and Hayes, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of three counts of murder in the second degree (Penal Law § 125.25, [3]) and one count of attempted murder in the second degree (§§ 110.00, 125.25 [1]). Defendant's contention that Supreme Court did not follow the requisite three-step analysis when defendant raised a Batson challenge is not preserved for our review ( see People v. Parker, 304 A.D.2d 146, 156, lv denied 100 N.Y.2d 585; see also People v. Crawford, 299 A.D.2d 848, 849, lv denied 99 N.Y.2d 653 and, in any event, is without merit. At the outset, we note that the issue whether defendant established a prima facie case of discrimination under the first step of the analysis is moot because the court continued with the three-step analysis and ruled on the ultimate issues of purposeful discrimination and pretext ( see People v. Smocum, 99 N.Y.2d 418, 422-423; People v. James, 99 N.Y.2d 264, 270; People v. Payne, 88 N.Y.2d 172, 181-182). The prosecutor met his burden of production in this case under step two of the analysis by setting forth facially race-neutral reasons for exercising a peremptory challenge with respect to a black juror ( see Smocum, 99 N.Y.2d at 423). The court accepted the prosecutor's race-neutral reasons and denied the challenge, thereby implicitly determining that those reasons were not pretextual ( see Parker, 304 A.D.2d at 156-157). That determination is entitled to great deference and is supported by the record ( see People v. Barney, 295 A.D.2d 1001, 1001-1002, lv denied 98 N.Y.2d 766; People v. Jones, 289 A.D.2d 962, lv denied 98 N.Y.2d 652; People v. Carelock, 278 A.D.2d 851, lv denied 96 N.Y.2d 757).
The court properly denied defendant's motion to set aside the verdict based upon juror misconduct ( see CPL 330.30). Defendant made the motion after it was revealed that a juror had knowledge of the layout of the apartment where the crime was committed and shared that knowledge with the other jurors. The juror was familiar with the apartment because he had installed appliances at that apartment complex. At the hearing on the motion, the juror in question testified that, although he believed that a diagram of the apartment that was introduced in evidence was inaccurate, his knowledge of the layout of the apartment did not affect his verdict. In addition, the other jurors who testified at the hearing indicated that they were not influenced by that juror's comments. Thus, under the facts of this case, defendant was not prejudiced by the juror's comments during deliberation ( see generally People v. Maragh, 94 N.Y.2d 569, 573-574; People v. Brown, 48 N.Y.2d 388, 393).
Defendant failed to preserve for our review his contention that the court erred in charging the jury that it was to draw no adverse inference from defendant's failure to testify in the absence of any request from defendant to so charge ( see People v. Rozanski, 209 A.D.2d 1018, lv denied 84 N.Y.2d 1038). In any event, the error is harmless ( see People v. Koberstein, 66 N.Y.2d 989, 991; People v. Davis, 251 A.D.2d 1072, lv denied 92 N.Y.2d 895; Rozanski, 209 A.D.2d at 1018). Because attempted manslaughter in the first degree (Penal Law § 110.00, 125.20) is a nonexistent crime, the court properly denied defendant's request to charge it as a lesser included offense of attempted murder in the second degree ( see People v. Martinez, 81 N.Y.2d 810, 811-812; People v. McDavis, 97 A.D.2d 302, 303-304). The court also properly denied defendant's request to charge the affirmative defense of extreme emotional disturbance ( see Penal Law § 125.25[a]) because the evidence did not support such a charge ( see People v. Savage, 148 A.D.2d 553, lv denied 74 N.Y.2d 668; see generally People v. Roche, 98 N.Y.2d 70, 75). The court did not abuse its discretion in admitting a videotape of the crime scene in evidence ( see People v. Hill, 281 A.D.2d 917, 918, lv denied 96 N.Y.2d 902; People v. Law, 273 A.D.2d 897, 898, lv denied 95 N.Y.2d 965).
By presenting evidence after the court denied his motion to dismiss the third count of the indictment, defendant waived review of the court's denial of his motion at the close of the People's proof, and defendant failed to renew the motion at the close of all the proof ( see People v. Hines, 97 N.Y.2d 56, 61, rearg denied 97 N.Y.2d 678; People v. Zeigler, 305 A.D.2d 1100). In any event, the court properly denied the motion, inasmuch as the evidence is legally sufficient to support the conviction on that charge. Defendant did not preserve for our review his contention that the court improperly charged accomplice liability with respect to the lesser included offense of manslaughter in the first degree under count one of the indictment ( see CPL 470.05). In any event, that contention is without merit because a defendant may be convicted of manslaughter in the first degree as either a principal or an accessory ( see People v. Lewis, 300 A.D.2d 827, 829, lv denied 99 N.Y.2d 630; People v. Kellogg, 210 A.D.2d 912, 913, lv denied 86 N.Y.2d 737). We have reviewed defendant's remaining contentions and conclude that they are without merit.