Opinion
2018-02131 Ind. No. 198/17
11-06-2019
The PEOPLE, etc., Respondent, v. Fabio E. ABREU, Appellant.
Janet E. Sabel, New York, N.Y. (Harold V. Ferguson, Jr., of counsel; David Friedman Oxen on the brief), for appellant. John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Christopher Bae of counsel), for respondent.
Janet E. Sabel, New York, N.Y. (Harold V. Ferguson, Jr., of counsel; David Friedman Oxen on the brief), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Christopher Bae of counsel), for respondent.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gene Lopez, J.), rendered January 9, 2018, convicting him of attempted burglary in the second degree and criminal trespass in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
We agree with the Supreme Court's determination granting the People's reverse- Batson application (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 ) with respect to two prospective jurors (see People v. Bell, 126 A.D.3d 718, 720, 5 N.Y.S.3d 227 ; People v. Pinto, 56 A.D.3d 494, 494–495, 866 N.Y.S.2d 764 ). The court's determination that the facially race-neutral reasons given by the defendant for his peremptory challenges to those jurors were pretextual is entitled to great deference on appeal and will not be disturbed where, as here, the determination is supported by the record (see People v. Santos, 150 A.D.3d 1270, 1271, 52 N.Y.S.3d 885 ; People v. Occhione, 94 A.D.3d 1021, 1022, 942 N.Y.S.2d 185 ; People v. Fogel, 73 A.D.3d 803, 803–804, 899 N.Y.S.2d 655 ).
The defendant's contention that the evidence was legally insufficient to support his conviction of attempted burglary in the second degree is without merit. Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of attempted burglary in the second degree (see People v. Sutton, 151 A.D.3d 763, 57 N.Y.S.3d 180 ; People v. Pierce, 106 A.D.3d 1198, 964 N.Y.S.2d 307 ). 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 342, 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 as to attempted burglary in the second degree 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 remaining contention is without merit.
MASTRO, J.P., DILLON, BRATHWAITE NELSON and IANNACCI, JJ., concur.