Opinion
KA 04-00572.
June 10, 2005.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), rendered April 15, 2003. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the fourth degree (two counts) and criminal possession of a weapon in the fourth degree.
HOWARD K. BRODER, ROCHESTER, FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: Hurlbutt, J.P., Scudder, Kehoe, Gorski and Hayes, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts each of criminal possession of a controlled substance in the third degree (Penal Law § 220.16) and criminal possession of a controlled substance in the fourth degree (§ 220.09 [1]) and one count of criminal possession of a weapon in the fourth degree (§ 265.01 [4]). Supreme Court properly denied defendant's Batson motion. The People provided race-neutral explanations for exercising peremptory challenges to the prospective jurors in question ( see People v. Ball, 11 AD3d 904, 905, lv denied 3 NY3d 755, 4 NY3d 741 [2004]; People v. Linen, 5 AD3d 1022, 1022-1023; People v. Harris, 1 AD3d 881, 882, lv denied 2 NY3d 740), and defendant failed to meet his burden of establishing that those explanations were pretextual ( see Harris, 1 AD3d at 882; People v. Welch, 298 AD2d 903, lv denied 99 NY2d 565; see generally People v. Smocum, 99 NY2d 418, 422). Defendant failed to preserve for our review his further contention that the court erred in failing to give a circumstantial evidence charge ( see CPL 470.05; People v. Wheeler, 284 AD2d 973, lv denied 96 NY2d 909; People v. Congelosi, 266 AD2d 930, 931, lv denied 94 NY2d 902, 95 NY2d 794). We decline to exercise our power to address that contention as a matter of discretion in the interest of justice ( see Wheeler, 284 AD2d at 973-974; Congelosi, 266 AD2d at 931).
Defendant also failed to preserve for our review his contention that he was deprived of a fair trial by prosecutorial misconduct on summation ( see CPL 470.05; People v. Jones, 13 AD3d 1192, lv denied 4 NY3d 799; People v. Barlow, 8 AD3d 1027, 1028, lv denied 3 NY3d 657). In any event, we conclude that the prosecutor's remarks constituted fair comment upon the evidence, to which there was no objection, that defendant was carrying a large sum of cash ( see generally People v. Ashwal, 39 NY2d 105, 109-110; People v. White, 291 AD2d 842, 843, lv denied 98 NY2d 656). In addition, we note that defense counsel's summation highlighted the issue of the cash in defendant's possession, and thus the prosecutor's remarks were a fair response to the summation of defense counsel ( see People v. Melendez, 11 AD3d 983, 984; People v. Kelly, 309 AD2d 1149, 1150, lv denied 1 NY3d 575; People v. Sinclair, 231 AD2d 926).