Opinion
02-04-2016
The PEOPLE of the State of New York, Respondent, v. David THOMPSON, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Katharine Skolnick of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (T. Charles Won of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Katharine Skolnick of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (T. Charles Won of counsel), for respondent.
SAXE, J.P., MOSKOWITZ, RICHTER, FEINMAN, JJ.
Judgment, Supreme Court, Bronx County (Nicholas Iacovetta, J.), rendered July 11, 2013, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him, as a second felony offender, to a term of 25 years to life, unanimously modified, on the law, to the extent of reducing the mandatory surcharge to $250 and the crime victim assistance fee to $20, and otherwise affirmed.
The court properly denied defendant's application pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) with respect to the striking of two prospective jurors. The prosecutor provided race-neutral reasons for striking the first prospective juror for demeanor-based reasons and the second prospective juror based on her lack of employment and her demeanor. The court's finding that these reasons were not pretextual is supported by the record, and this determination is entitled to great deference (see Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175 [2008] ; People v. Hernandez, 75 N.Y.2d 350, 553 N.Y.S.2d 85, 552 N.E.2d 621 [1990], affd. 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 [1991] ). To the extent the court's recollection of the voir dire colloquies may have been imprecise, any factual errors were not essential to the court's determinations. The record also fails to support defendant's claim of disparate treatment by the prosecutor of similarly situated panelists.
The court, which suppressed defendant's initial statements as the product of a custodial interrogation, properly admitted two subsequent statements made by defendant, after having been given Miranda warnings, as there was a definite, pronounced break of at least four hours in the interrogation, which attenuated any taint of the suppressed statements and returned defendant to the status of one who is not under the influence of questioning (People v. Chapple, 38 N.Y.2d 112, 115, 378 N.Y.S.2d 682, 341 N.E.2d 243 [1975] ; People v. Davis, 106 A.D.3d 144, 152–156, 963 N.Y.S.2d 48 [1st Dept.2013], lv. denied 21 N.Y.3d 1073, 974 N.Y.S.2d 322, 997 N.E.2d 147 [2013] ). Other factors supporting attenuation were that there were new interrogators, with the original interrogator being merely present without participating, that the initial statement was factually different from and less significant than the subsequent statements, and that the later interrogators did not refer to the content of the initial statement.
The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations. The evidence, including the detailed observations of a disinterested eyewitness, refuted defendant's claim of self-defense.
We perceive no basis for reducing the sentence. Based on the People's concession, we reduce the surcharge and crime victim assistance fee to conform to the statute in effect at the time of the crime.