Opinion
2012-02841, Ind. No. 7305/10.
05-11-2016
The PEOPLE, etc., respondent, v. Franklin JONES, appellant.
Lynn W.L. Fahey, New York, N.Y. (Samuel Brown of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, Victor Barall, and Kristen A. Carroll of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Samuel Brown of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, Victor Barall, and Kristen A. Carroll of counsel), for respondent.
L. PRISCILLA HALL, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, and BETSY BARROS, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Balter, J.), rendered March 13, 2012, convicting him of assault in the second degree and menacing in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, on the law and the facts, count four of the indictment charging menacing in the third degree is dismissed, and the matter is remitted to the Supreme Court, Kings County, for a new trial on count one of the indictment charging assault in the second degree.
The defendant was convicted of assault in the second degree and menacing in the third degree. On appeal, the defendant contends, among other things, that his conviction of menacing in the third degree was against the weight of the evidence.
“Upon [a] defendant's request, the Appellate Division must conduct a weight of the evidence review” and, thus, “a defendant will be given one appellate review of adverse factual findings” (People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ). “If a finding in favor of the defendant would not have been unreasonable, then this Court ‘must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions' ” (People v. Curry, 112 A.D.3d 843, 844, 976 N.Y.S.2d 571, quoting People v. Danielson, 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ). “Once this Court conducts such an analysis, it must then decide whether the verdict finding the defendant guilty beyond a reasonable doubt was warranted” (People v. Curry, 112 A.D.3d at 844, 976 N.Y.S.2d 571 ). This Court essentially “sits as a thirteenth juror and decides which facts were proven at trial” (People v. Danielson, 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ). If the factfinder failed to give the evidence the weight it should be accorded, then this Court will set aside the verdict and dismiss the accusatory instrument or any reversed count (see CPL 470.20[5] ; People v. Romero, 7 N.Y.3d 633, 643–644, 826 N.Y.S.2d 163, 859 N.E.2d 902 ; People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ).
Here, upon the exercise of our factual review power (see CPL 470.15 ), we determine that an acquittal of the charge of menacing in the third degree would not have been unreasonable based upon the evidence presented. Furthermore, we determine that the evidence presented at trial did not establish, beyond a reasonable doubt, that the defendant “intentionally place [d] or attempt[ed] to place [the complaining witness] in fear of death, imminent serious physical injury or physical injury” (Penal Law § 120.15 ; see Matter of Ashley C., 59 A.D.3d 715, 715–716, 873 N.Y.S.2d 361 ; Matter of Davonte B., 44 A.D.3d 763, 764, 844 N.Y.S.2d 68 ). Since the verdict with respect to that count was against the weight of the evidence, we vacate the conviction of menacing in the third degree and the sentence imposed thereon, and dismiss that count of the indictment.
The defendant also contends, and the People concede, that the Supreme Court erred in granting the prosecution's peremptory challenges to two prospective black jurors because the prosecution failed to provide sufficient race-neutral explanations for challenging those potential jurors (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 ; People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235 ). New York courts apply the three-step test of Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 to determine whether a party has used peremptory challenges to exclude potential jurors for an impermissible discriminatory reason (see People v. Smocum, 99 N.Y.2d 418, 421–422, 757 N.Y.S.2d 239, 786 N.E.2d 1275 ; People v. Carillo, 9 A.D.3d 333, 334, 780 N.Y.S.2d 143 ). “The first step requires that the moving party make a prima facie showing of discrimination in the exercise of peremptory challenges; the second step shifts the burden to the nonmoving party to provide race-neutral reasons for each juror being challenged; and the third step requires the court to make a factual determination as to whether the race-neutral reasons are merely a pretext for discrimination” (People v. Carillo, 9 A.D.3d at 334, 780 N.Y.S.2d 143 ; see People v. Smocum, 99 N.Y.2d at 421–422, 757 N.Y.S.2d 239, 786 N.E.2d 1275 ).
Here, during jury selection, the defendant made an application before the trial court pursuant to Batson, arguing that the prosecution was exercising its peremptory challenges in a discriminatory manner against prospective black jurors. The prosecutor proffered an explanation for challenging one of the two jurors at issue, stating that it was “just our instincts that we don't feel [prospective juror] number 4 would be a suitable juror for this particular trial.” This explanation was inadequate (see People v. Erskine, 90 A.D.3d 674, 933 N.Y.S.2d 740 ; People v. Carillo, 9 A.D.3d at 334, 780 N.Y.S.2d 143 ; People v. Padgett, 303 A.D.2d 524, 756 N.Y.S.2d 620 ). Under the circumstances, the fact that the prosecution, essentially, “offered no reason at all with respect to [its] challenge of the juror is dispositive of the Batson issue” (People v. Stewart, 238 A.D.2d 361, 361, 656 N.Y.S.2d 304 ; see People v. Allen, 86 N.Y.2d 101, 109–110, 629 N.Y.S.2d 1003, 653 N.E.2d 1173 ; People v. Smith, 251 A.D.2d 355, 355, 673 N.Y.S.2d 716 ; see also People v. Hecker, 15 N.Y.3d 625, 652, 917 N.Y.S.2d 39, 942 N.E.2d 248 ; People v. Jenkins, 75 N.Y.2d 550, 560, 555 N.Y.S.2d 10, 554 N.E.2d 47 ). In light of this determination, it is unnecessary to review the defendant's arguments with respect to the other potential juror (see People v. Carillo, 9 A.D.3d at 334, 780 N.Y.S.2d 143 ).
The defendant's contention that certain remarks made by the prosecutor during summation deprived him of a fair trial is unpreserved for appellate review (see CPL 470.05 ), and we decline to review it in the exercise of our interest of justice jurisdiction.
In light of our determination, we need not address the defendant's remaining contention.