Opinion
KA 00-00306
November 15, 2002.
Appeal from a judgment of Erie County Court (Pietruszka, J.), entered October 19, 1999, convicting defendant after a jury trial of, inter alia, murder in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL CRAWFORD, DEFENDANT-APPELLANT PRO SE.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., HAYES, KEHOE, BURNS, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Contrary to the contention of defendant, he was not denied his rights to due process and equal protection by the prosecutor's exercise of peremptory challenges to exclude two African-American prospective jurors. The prosecutor provided race-neutral explanations for excluding each of those prospective jurors ( see People v. Allen, 86 N.Y.2d 101, 109-110; People v. Dupree, 283 A.D.2d 1023, lv denied 96 N.Y.2d 918), and County Court's determination that the prosecutor's explanations were not pretextual is entitled to great deference ( see Hernandez v. New York, 500 U.S. 352, 364; People v. Blunt, 280 A.D.2d 956, 956-957, lv denied 96 N.Y.2d 826) . The contention of defendant that the court applied an inappropriate legal standard in denying his Batson motion is unpreserved for our review because defendant failed to object on that ground at a time when the court could have remedied the perceived error ( see CPL 470.05; People v. Correa, 265 A.D.2d 488, lv denied 94 N.Y.2d 861; People v. Parks, 210 A.D.2d 437, lv denied 85 N.Y.2d 941). In any event, the record establishes that the court applied the appropriate legal standard in denying defendant's Batson motion ( see Parks, 210 A.D.2d 437) . The evidence is legally sufficient to support the conviction of felony murder (Penal Law § 125.25) and robbery in the first degree (§ 160.15 [2]) and the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495). The further contention of defendant that he was denied a fair trial by prosecutorial misconduct during summation is unpreserved for our review because defendant did not object to the prosecutor's allegedly inappropriate comments ( see People v. Tonge, 93 N.Y.2d 838, 839-840; People v. Anderson, 274 A.D.2d 974, lv denied 95 N.Y.2d 863). In any event, the prosecutor's comments were not so egregious as to deny defendant a fair trial ( see People v. Hightower, 286 A.D.2d 913, 914, lv denied 97 N.Y.2d 656). The sentence is neither unduly harsh nor severe.