Opinion
1172 KA 16–01761
11-16-2018
The PEOPLE of the State of New York, Respondent, v. Deshawn HARRIS, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT–APPELLANT. DESHAWN HARRIS, DEFENDANT–APPELLANT PRO SE. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT–APPELLANT.
DESHAWN HARRIS, DEFENDANT–APPELLANT PRO SE.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CARNI, CURRAN, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of murder in the second degree ( Penal Law § 125.25 [1 ] ). Defendant contends that Supreme Court erred in denying his challenge for cause of a prospective juror. Although defendant exhausted his peremptory challenges and therefore "[a]n erroneous ruling by the court denying a challenge for cause [would] constitute reversible error" ( CPL 270.20[2] ; see generally People v. Thompson, 21 N.Y.3d 555, 560, 975 N.Y.S.2d 380, 997 N.E.2d 1232 [2013] ), we nevertheless reject that contention (see generally People v. Johnson, 94 N.Y.2d 600, 616, 709 N.Y.S.2d 134, 730 N.E.2d 932 [2000] ). The prospective juror stated that he had recognized the name of a police detective involved in the case. Following questioning by the court regarding whether that would affect his ability to be fair and unbiased, the prospective juror replied, "I doubt it." The prospective juror also answered that he "believed so" when he was questioned by the court regarding whether he could separate the instant shooting from two shootings that he had witnessed years ago. When further questioned by defense counsel if he would "lean one way or another in this type of case," the prospective juror answered, "No." We conclude that the prospective juror's "statements here, taken in context and as a whole, were unequivocal" with respect to his ability to be fair and impartial ( People v. Chambers, 97 N.Y.2d 417, 419, 740 N.Y.S.2d 291, 766 N.E.2d 953 [2002] ; see People v. Smith, 126 A.D.3d 1528, 1530, 6 N.Y.S.3d 870 [4th Dept. 2015], lv denied 26 N.Y.3d 1150, 32 N.Y.S.3d 64, 51 N.E.3d 575 [2016] ).
Contrary to defendant's further contention, the court did not abuse its discretion in permitting the prosecutor to ask questions of a witness on redirect examination regarding the witness's disability that the prosecutor did not address on direct examination with that witness and that were not raised during cross-examination (see People v. Dennis, 55 A.D.3d 385, 386, 866 N.Y.S.2d 28 [1st Dept. 2008], lv denied 12 N.Y.3d 783, 879 N.Y.S.2d 59, 906 N.E.2d 1093 [2009] ). The questions were brief, and were used to support the People's theory that defendant must have been the shooter inasmuch as the witness had a disability, making it unlikely that the witness was the shooter. Moreover, defense counsel had an opportunity to re-cross-examine the witness with respect to that topic, but he did not avail himself of that opportunity.
Viewing the evidence in light of the elements of the crime 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 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] ). We reject defendant's contention that the sentence is unduly harsh and severe.
We have reviewed defendant's remaining contentions in his main and pro se supplemental briefs and conclude that they are either unpreserved for our review or without merit.