Opinion
9320 Ind. 850/09
05-16-2019
The PEOPLE of the State of New York, Respondent, v. Jermaine DUNHAM, Defendant–Appellant.
Christina A. Swarns, Office of the Appellate Defender, New York (Emma L. Shreefter of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Lee M. Pollack of counsel), for respondent.
Christina A. Swarns, Office of the Appellate Defender, New York (Emma L. Shreefter of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Lee M. Pollack of counsel), for respondent.
Gische, J.P., Kahn, Gesmer, Singh, Moulton, JJ.
Judgment, Supreme Court, New York County (Patricia M. Nun~ez, J. at suppression hearing; Bruce Allen, J. at jury trial and sentencing), rendered January 4, 2011, convicting defendant of criminal possession of weapon in the second degree, and sentencing him to a term of 4 ½ years, unanimously affirmed.
The court did not violate defendant's rights under CPL 310.30 and People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 [1991] by failing to place on the record and discuss in advance with the attorneys a jury note requesting exhibits, consisting of a revolver and all of the photographs within an unambiguously defined category. Notes that only require the ministerial act of sending exhibits into the jury room do not implicate the requirements of O'Rama ( People v. Ziegler, 78 A.D.3d 545, 911 N.Y.S.2d 331 [1st Dept. 2010], lv denied 16 N.Y.3d 838, 921 N.Y.S.2d 203, 946 N.E.2d 191 [2011] ) Moreover, the parties had explicitly agreed that the jurors could see exhibits "without going on the record" (see People v. Green, 82 A.D.3d 593, 919 N.Y.S.2d 152 [1st Dept. 2011], lv denied 17 N.Y.3d 816, 929 N.Y.S.2d 805, 954 N.E.2d 96 [2011] ). There was nothing about the content of either branch of the jury's request, or the parties' stipulation, that called for input from counsel, and we find defendant's arguments to the contrary unpersuasive.
The court properly denied defendant's application pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 [1986]. The record supports the court's finding that the nondiscriminatory reason provided by the prosecutor for the challenge in question was not pretextual. This finding is entitled to great deference (see People v. Hernandez, 75 N.Y.2d 350, 553 N.Y.S.2d 85, 552 N.E.2d 621 [1990], affd 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 [1991] ). The prosecutor explained that the panelist's demeanor displayed hesitation, suggesting an attempt to evade questions. The court understood the prosecutor's explanation to be demeanor-based, and it expressly stated that it had made similar observations of the panelist's demeanor. Although not required to deny a Batson claim, such observations by the court itself are of "great importance" ( Thaler v. Haynes, 559 U.S. 43, 49, 130 S.Ct. 1171, 175 L.Ed.2d 1003 [2010] ).The hearing court properly denied defendant's suppression motion. There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ).