Opinion
2018–07006 Ind. No. 2168/16
11-02-2022
The PEOPLE, etc., respondent, v. Sherwin R. BENN, appellant.
Patricia Pazner, New York, NY (Sarah B. Cohen of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, and Rebecca Nealon of counsel), for respondent.
Patricia Pazner, New York, NY (Sarah B. Cohen of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, and Rebecca Nealon of counsel), for respondent.
COLLEEN D. DUFFY, J.P., REINALDO E. RIVERA, DEBORAH A. DOWLING, JANICE A. TAYLOR, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (John F. Zoll, J.), rendered May 9, 2018, convicting him of robbery in the first degree, assault in the first degree, and assault in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
In September 2016, the defendant was arrested in connection with the assault and robbery of the complainant. After a jury trial, the defendant was convicted of robbery in the first degree, assault in the first degree, and assault in the second degree.
The defendant contends that the Supreme Court erred in granting the People's reverse Batson -Kern application (see Batson v. Kentucky, 476 U.S. 79, 96–98, 106 S.Ct. 1712, 90 L.Ed.2d 69 ; People v. Kern, 75 N.Y.2d 638, 657–658, 555 N.Y.S.2d 647, 554 N.E.2d 1235 ) with respect to one prospective juror. Contrary to the defendant's contention, the record demonstrates that the court conducted the proper three-step Batson analysis and supports its determination that defense counsel's proffered reason challenging the subject prospective juror was pretextual. Thus, we decline to disturb the court's determination that the challenge was pretextual as to the subject prospective juror (see People v. Gainer, 207 A.D.3d 745, 746, 172 N.Y.S.3d 454 ; People v. Abney, 202 A.D.3d 811, 158 N.Y.S.3d 863 ; People v. Brown, 129 A.D.3d 854, 856, 11 N.Y.S.3d 616 ).
The defendant's challenge to the legal sufficiency of the evidence is partially unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. 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 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 ).
Further, the Supreme Court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 ) was a provident exercise of discretion, as it constituted an appropriate compromise which properly balanced the probative value of the proffered evidence against the potential prejudice to the defendant (see People v. Smith, 18 N.Y.3d 588, 593–594, 942 N.Y.S.2d 5, 965 N.E.2d 232 ; People v. Hayes, 97 N.Y.2d 203, 207–208, 738 N.Y.S.2d 663, 764 N.E.2d 963 ; see also People v. Williams, 298 A.D.2d 181, 182, 748 N.Y.S.2d 44 ; People v. Walker, 223 A.D.2d 414, 415, 636 N.Y.S.2d 765 ). The defendant's contention that certain counts in the indictment, as charged to the jury, were multiplicitous is unpreserved for appellate review (see People v. Allen, 24 N.Y.3d 441, 448–450, 999 N.Y.S.2d 350, 24 N.E.3d 586 ; People v. Cruz, 96 N.Y.2d 857, 730 N.Y.S.2d 29, 754 N.E.2d 1112 ), and, under the circumstances of this case, we decline to review it in the exercise of our interest of justice jurisdiction (see CPL 470.05[2] ; 470.15[3][c]; People v. Denton, 187 A.D.3d 933, 933–934, 130 N.Y.S.3d 370 ; People v. Taylor, 185 A.D.3d 724, 725, 127 N.Y.S.3d 555 ; People v. Palant, 176 A.D.3d 872, 875, 111 N.Y.S.3d 361 ; People v. McClean, 137 A.D.3d 940, 942, 28 N.Y.S.3d 81 ; People v. Jerry, 126 A.D.3d 1001, 1002, 4 N.Y.S.3d 317 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contentions are without merit.
DUFFY, J.P., RIVERA, DOWLING and TAYLOR, JJ., concur.