Opinion
2014–11595 Ind. No. 236/13
07-27-2022
The PEOPLE, etc., respondent, v. Tyrone GAINER, appellant.
Justin C. Bonus, Forest Hills, NY, for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Avshalom Yotam of counsel), for respondent.
Justin C. Bonus, Forest Hills, NY, for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Avshalom Yotam of counsel), for respondent.
BETSY BARROS, J.P., VALERIE BRATHWAITE NELSON, ROBERT J. MILLER, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Alan D. Marrus, J.), rendered November 13, 2014, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant shot and killed the decedent inside a diner during the early morning hours of January 6, 2013, following a confrontation between the defendant and the decedent's girlfriend moments earlier. After a jury trial, during which the defendant claimed he shot the decedent in self-defense, the defendant was convicted of murder in the second degree and criminal possession of a weapon in the second degree.
The defendant contends that the Supreme Court erred in granting the People's reverse Batson 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 two Asian prospective jurors. 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 reasons challenging the subject prospective jurors were pretextual. Thus, we decline to disturb the court's determination that the challenge was pretextual as to the subject prospective jurors (see People v. Abney, 202 A.D.3d 811, 158 N.Y.S.3d 863 ; People v. Richie, 217 A.D.2d 84, 89, 635 N.Y.S.2d 263 ). Also contrary to the defendant's contention, the court properly denied his Batson challenge to the prosecution's use of peremptory challenges to strike Black prospective jurors for failing to make a prima facie showing of discrimination (see People v. Brown, 97 N.Y.2d 500, 507, 743 N.Y.S.2d 374, 769 N.E.2d 1266 ; People v. Small, 156 A.D.3d 820, 823–824, 67 N.Y.S.3d 249 ).
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, 348, 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 ). Upon reviewing the record here, we are satisfied that the jury's rejection of the defendant's justification defense and the verdict of guilt were 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 ; People v. Ewers, 195 A.D.3d 857, 857–858, 145 N.Y.S.3d 832 ). The defendant's contentions that the Supreme Court improperly instructed the jury on the defense of justification and improperly failed to give a jury charge on intoxication are unpreserved for appellate review (see CPL 470.05[2] ; People v. Perez, 169 A.D.3d 720, 721, 91 N.Y.S.3d 733 ; People v. Louis, 153 A.D.3d 728, 57 N.Y.S.3d 891 ). In any event, the court's charge, viewed as a whole, properly instructed the jury as to the defense of justification and was a correct statement of the law (see People v. Hicks, 190 A.D.3d 766, 135 N.Y.S.3d 856 ; People v. Torres, 185 A.D.3d 971, 125 N.Y.S.3d 867 ). Also, in any event, viewing the evidence in the light most favorable to the defense, denial of a jury charge on intoxication would have been warranted (see People v. Beaty, 22 N.Y.3d 918, 977 N.Y.S.2d 172, 999 N.E.2d 535 ; People v. Smith, 36 A.D.3d 633, 831 N.Y.S.2d 76 ). Further, defense counsel's failure to object to the justification defense instructions or ask for a jury charge on the intoxication defense did not amount to ineffective assistance of counsel, since "an attorney is not deemed ineffective for failing to pursue an argument that had little or no chance of success" ( People v. Ennis, 11 N.Y.3d 403, 415, 872 N.Y.S.2d 364, 900 N.E.2d 915 ; see People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 ; People v. Naqvi, 132 A.D.3d 779, 781, 17 N.Y.S.3d 762 ) or for failing to make a futile objection (see People v. Torres, 185 A.D.3d at 971, 125 N.Y.S.3d 867 ), and it is clear from the record as a whole that the defendant received meaningful representation (see People v. Carncross, 14 N.Y.3d 319, 331, 901 N.Y.S.2d 112, 927 N.E.2d 532 ; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).
The defendant's challenge to certain remarks made by the prosecutor during summation is unpreserved for appellate review (see CPL 470.05[2] ; People v. Willis, 165 A.D.3d 984, 985, 85 N.Y.S.3d 230 ; People v. Morris, 157 A.D.3d 827, 66 N.Y.S.3d 644 ; People v. Grant, 152 A.D.3d 792, 59 N.Y.S.3d 433 ; People v. McMillan, 130 A.D.3d 651, 12 N.Y.S.3d 301, affd 29 N.Y.3d 145, 53 N.Y.S.3d 590, 75 N.E.3d 1151 ). In any event, the challenged remarks either were fair response to arguments presented in summation by defense counsel or fair comment on the evidence and the reasonable inferences to be drawn therefrom (see People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564 ; People v. Hogue, 166 A.D.3d 1009, 1011, 88 N.Y.S.3d 465 ; People v. Jean, 118 A.D.3d 1024, 1025, 987 N.Y.S.2d 630 ; People v. Monteleone, 71 A.D.3d 790, 895 N.Y.S.2d 751 ; People v. Crawford, 54 A.D.3d 961, 863 N.Y.S.2d 830 ), or constituted harmless error in light of the overwhelming evidence of the defendant's guilt, and the fact that there was no significant probability that such errors might have contributed to the defendant's convictions, and were not so flagrant or pervasive as to have deprived the defendant of a fair trial (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Harrigan, 200 A.D.3d 803, 155 N.Y.S.3d 97 ).
The defendant failed to preserve for appellate review his contention that he was improperly sentenced as a second felony offender because he failed to contest that adjudication before or at his sentencing (see People v. Terry, 194 A.D.3d 855, 143 N.Y.S.3d 905 ), and we decline to consider the issue in the exercise of our interest of justice jurisdiction.
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675, 455 N.Y.S.2d 675 ).
BARROS, J.P., BRATHWAITE NELSON, MILLER and ZAYAS, JJ., concur.