Opinion
October 1, 1999
Appeal from Judgment of Monroe County Court, Smith, J. — Assault, 1st Degree.
Judgment unanimously affirmed. Memorandum: We reject the contention that the evidence is legally insufficient to support defendant's conviction of two counts of burglary in the first degree (Penal Law § 140.30, [3]). The evidence, viewed in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620), establishes that defendant did not have permission to enter the apartment (see, People v. Dowdall, 236 A.D.2d 836, 836-837; People v. Handley, 203 A.D.2d 924, lv denied 84 N.Y.2d 826) and entered with the intent to commit a crime therein (see, People v. Figueroa, 204 A.D.2d 972, lv denied 84 N.Y.2d 825; People v. Walker, 175 A.D.2d 674, lv denied 78 N.Y.2d 1131). Further, upon weighing the relative probative force of the conflicting testimony, we conclude that the verdict is not contrary to the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495)
County Court properly determined that defendant failed to make a prima facie showing of purposeful discrimination on the basis of race arising from the prosecutor's exercise of a peremptory challenge to exclude an Asian-American prospective juror (see, People v. Mathews, 201 A.D.2d 588, lv denied 83 N.Y.2d 912). The court also properly denied her objection to the prosecutor's peremptory challenge of a black prospective juror. "The prosecutor proffered a race-neutral explanation for the challenge, and `the trial court was in the best position to observe the prosecutor's demeanor and determine whether his explanations were credible or merely pretexts for racial discrimination'" (People v. McIlwain, 259 A.D.2d 1046 [decided Mar. 31, 1999], quoting People v. Adams, 247 A.D.2d 625, lv denied 92 N.Y.2d 847)
We reject defendant's contentions that the Grand Jury proceedings were rendered defective by the failure to disclose an agreement by the prosecutor not to prosecute two of his witnesses (see, People v. Landtiser, 222 A.D.2d 525, 526-527; see generally, People v. Morris, 204 A.D.2d 973, 973-974, lv denied 83 N.Y.2d 1005) and that the agreement is evidence of unconstitutional selective enforcement of the penal laws (see, People v. Blount, 90 N.Y.2d 998, 999; People v. Ubrich, 244 A.D.2d 792, 793, lv denied 91 N.Y.2d 898). We further reject the contention that defendant was denied effective assistance of counsel. "[T]he evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation" (People v. Baldi, 54 N.Y.2d 137, 147). The sentence is not unduly harsh or severe.
Defendant failed to preserve for our review her contentions that she was deprived of a fair trial as the result of erroneous jury instructions (see, People v. Robinson, 88 N.Y.2d 1001) and prosecutorial misconduct (see, People v. Cox, 256 A.D.2d 1244, lv denied 93 N.Y.2d 923). Defendant also failed to preserve for our review her contention that CPL 270.25 is unconstitutional as applied (see, People v. Iannelli, 69 N.Y.2d 684, 685, cert denied 482 U.S. 914). Finally, by failing to join in codefendant's motion to set aside the verdict pursuant to CPL 330.30 on the ground of juror misconduct, defendant failed to preserve for our review her contention that she was deprived of a fair trial by juror misconduct (see, People v. Teeter, 47 N.Y.2d 1002, 1003). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see, CPL 470.15 [a]).
PRESENT: GREEN, J.P., PINE, WISNER, CALLAHAN AND BALIO, JJ.