Opinion
11918 Ind. No. 4884/15 Case No. 2018-2217
10-01-2020
The PEOPLE of the State of New York, Respondent, v. Lature IRVIN, Sr., Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Arielle Reid of counsel), for appellant. Cyrus R. Vance, Jr. District Attorney, New York (Deborah L. Morse of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Arielle Reid of counsel), for appellant.
Cyrus R. Vance, Jr. District Attorney, New York (Deborah L. Morse of counsel), for respondent.
Kapnick, J.P., Gesmer, Gonza´lez,Scarpulla, JJ.
Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered November 2, 2017, convicting defendant, after a jury trial, of conspiracy in the second degree and 10 counts of criminal sale of a controlled substance in the first degree, and sentencing him to an aggregate term of 40 years, unanimously affirmed.
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]. Defendant has not established that, on this particular record, the reason given by the prosecutor for a certain peremptory challenge actually reflected a racial stereotype. Accordingly, the court correctly determined that the prosecutor provided race-neutral reasons for all the challenges at issue. The record also supports the court's finding that these race-neutral reasons were 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] ). Defendant did not preserve his claims of disparate treatment by the prosecutor of similarly situated panelists (see People v. Toliver, 102 A.D.3d 411, 412, 958 N.Y.S.2d 95 [1st Dept. 2013], lv denied 21 N.Y.3d 1011, 971 N.Y.S.2d 262, 993 N.E.2d 1286 [2013] ), and we decline to review these claims in the interest of justice. As an alternative holding, we find them unavailing.
The court properly denied defendant's motion to suppress his statement. The record supports the hearing court's finding that, under the totality of circumstances, defendant did not make an unequivocal assertion of his right to counsel (see People v. Glover, 87 N.Y.2d 838, 637 N.Y.S.2d 683, 661 N.E.2d 155 [1995] ). When defendant requested to put his lawyer on speakerphone, and the interviewing Assistant District Attorney replied that defendant's request would be honored, defendant immediately abandoned that request. Instead, defendant clarified that what he really wanted was to speak to family members, which he proceeded to do.
The evidentiary rulings at issue on appeal were provident exercises of the trial court's discretion. In each instance, the record supports the court's finding that defendant opened the door to the challenged evidence. In any event, neither ruling resulted in any undue prejudice. We perceive no basis for reducing the sentence, or directing that it run concurrently with defendant's sentence in an unrelated out-of-state case.