Opinion
430 KA 19-01574
06-09-2023
The PEOPLE of the State of New York, Respondent, v. Latifah CANNON, Defendant-Appellant.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER, EASTON THOMPSON KASPEREK SHIFFRIN LLP (BRIAN SHIFFRIN OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER, EASTON THOMPSON KASPEREK SHIFFRIN LLP (BRIAN SHIFFRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, CURRAN, BANNISTER, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of robbery in the first degree ( Penal Law § 160.15 [4] ) and endangering the welfare of a child (§ 260.10 [1]). Viewing the evidence in light of the elements of the crime of robbery in the first degree as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict with respect to that count is not against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Although a different verdict would not have been unreasonable, it cannot be said that the jury "failed to give the evidence the weight it should be accorded" ( id. ; see People v. Kalinowski , 118 A.D.3d 1434, 1436, 988 N.Y.S.2d 776 [4th Dept. 2014], lv denied 23 N.Y.3d 1064, 994 N.Y.S.2d 323, 18 N.E.3d 1144 [2014] ). We reject defendant's further contention that Supreme Court erred in denying her Batson challenge with respect to two prospective jurors. The People gave race-neutral reasons for the peremptory challenges, and defendant did not meet her ultimate burden of establishing that those reasons were pretextual (see People v. Switts , 148 A.D.3d 1610, 1611, 52 N.Y.S.3d 178 [4th Dept. 2017], lv denied 29 N.Y.3d 1087, 64 N.Y.S.3d 177, 86 N.E.3d 264 [2017] ; People v. Johnson , 38 A.D.3d 1327, 1328, 833 N.Y.S.2d 338 [4th Dept. 2007], lv denied 9 N.Y.3d 866, 840 N.Y.S.2d 895, 872 N.E.2d 1201 [2007] ). "[T]he court was in the best position to observe the demeanor of the prospective juror[s] and the prosecutor, and its ... determination that the prosecutor's explanation[s were] race-neutral and not pretextual is entitled to great deference" ( People v. Dandridge , 26 A.D.3d 779, 780, 809 N.Y.S.2d 353 [4th Dept. 2006], lv denied 9 N.Y.3d 1032, 852 N.Y.S.2d 18, 881 N.E.2d 1205 [2008] [internal quotation marks omitted]). We see no reason to disturb that determination. Finally, we reject defendant's contention that she was denied a fair trial because of improper statements made by the prosecutor during summation. "To the extent that a portion of the prosecutor's summation could be viewed as containing a misstatement of law, ... any prejudice was avoided by the court's instructions, which the jury is presumed to have followed" ( People v. Harper , 132 A.D.3d 1230, 1234, 17 N.Y.S.3d 797 [4th Dept. 2015], lv denied 27 N.Y.3d 998, 38 N.Y.S.3d 108, 59 N.E.3d 1220 [2016] [internal quotation marks omitted]; see People v. Padin , 121 A.D.3d 628, 629, 994 N.Y.S.2d 309 [1st Dept. 2014], lv denied 25 N.Y.3d 1169, 15 N.Y.S.3d 301, 36 N.E.3d 104 [2015] ).