Opinion
2017–00356 Ind. No. 2705/15
05-13-2020
The PEOPLE, etc., respondent, v. Kareem OUSMANE, appellant.
Paul Skip Laisure, New York, NY (Cynthia Colt of counsel), for appellant, and appellant pro se. Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Christopher J. Blira-Koessler of counsel), for respondent.
Paul Skip Laisure, New York, NY (Cynthia Colt of counsel), for appellant, and appellant pro se.
Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Christopher J. Blira-Koessler of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Stephen A. Knopf, J.), rendered December 16, 2016, convicting him of assault in the second degree, assault in the third degree, and harassment in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
We agree with the Supreme Court's denial of the defendant's Batson challenges (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 ). The defendant failed to establish that the race-neutral reasons proffered for the peremptory challenges at issue were pretextual (see People v. Hecker, 15 N.Y.3d 625, 663–664, 917 N.Y.S.2d 39, 942 N.E.2d 248 ; People v. Smocum, 99 N.Y.2d 418, 422–423, 757 N.Y.S.2d 239, 786 N.E.2d 1275 ).
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the physical injury element of the crimes of assault in the second degree and assault in the third degree beyond a reasonable doubt (see Penal Law §§ 10.00[9] ; 120.00[1]; 120.05[3]; People v. Chiddick, 8 N.Y.3d 445, 446–447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 ; People v. Rose, 120 A.D.3d 593, 594, 990 N.Y.S.2d 832 ). Moreover, 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 verdict of guilt on those counts was 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 ).
The defendant's contention that the prosecutor made improper comments during summation is unpreserved for appellate review, as defense counsel either failed to object to the challenged comments, registered one-word general objections, or, after the Supreme Court issued curative instructions with respect to some of the remarks, failed to request further instructions (see CPL 470.05[2] ; People v. Gill, 54 A.D.3d 965, 965–966, 864 N.Y.S.2d 135 ). In any event, the remarks either were fair comment on the evidence, were fair response to arguments raised by the defense in summation, or did not exceed the bounds of permissible rhetorical comment (see People v. Fassino, 169 A.D.3d 921, 923, 94 N.Y.S.3d 360 ).
The defendant's contention that the Supreme Court should not have sentenced him in absentia is without merit. "A defendant has the right to be present at all material stages of trial (see People v. Ciaccio, 47 N.Y.2d 431, 436, 418 N.Y.S.2d 371, 391 N.E.2d 1347 ), including sentencing (see CPL 380.40[1] )" ( People v. Stewart, 28 N.Y.3d 1091, 1092, 45 N.Y.S.3d 318, 68 N.E.3d 43 ). A defendant who has been convicted of a felony may waive his right to be present at sentencing, but must do so "expressly" ( People v. Rossborough, 27 N.Y.3d 485, 488, 34 N.Y.S.3d 399, 54 N.E.3d 71 ). The sentencing minutes reflect that the defendant voluntarily left the courtroom during the sentencing proceeding after being apprised by the court of his right to be present and to make a statement, and refused to return to the courtroom when the court invited him back in (see People v. Herrera, 160 A.D.2d 416, 554 N.Y.S.2d 30 ). Accordingly, the defendant made a "knowing, voluntary and intelligent decision" to waive his right to be present at sentencing ( People v. Corley, 67 N.Y.2d 105, 110, 500 N.Y.S.2d 633, 491 N.E.2d 1090 ).
The defendant's contention that the Supreme Court improperly sentenced him by utilizing a presentence report (hereinafter PSR) which did not include an interview with the defendant is unpreserved for appellate review, as he did not raise this claim at sentencing (see CPL 470.05[2] ; People v. Marin, 157 A.D.2d 804, 805, 550 N.Y.S.2d 407 ). In any event, this contention is without merit. The defendant cannot be heard to complain about the absence of a complete PSR inasmuch as he was afforded an opportunity to provide information to the court which he could have provided in an interview but refused to do so. Accordingly, having failed to take advantage of this opportunity, the defendant waived his objection (see People v. Greene, 209 A.D.2d 541, 542, 619 N.Y.S.2d 74 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's contention, raised in his pro se supplemental brief, that the Supreme Court should have granted his pro se motion, made prior to jury selection, which was, in effect, to relieve assigned counsel and be appointed new counsel, is without merit (see People v. Torres, 177 A.D.3d 785, 110 N.Y.S.3d 336 ).
The defendant's contention, raised in his pro se supplemental brief, that his Fourth and Fifth Amendment rights were violated when a sample of his blood was taken at the hospital is unpreserved for appellate review, and, in any event, without merit. There is no evidence in the record that the defendant's blood was not drawn consensually or for the purpose of medical treatment (see e.g. People v. King, 232 A.D.2d 111, 117–118, 663 N.Y.S.2d 610 ).
The defendant's contention, raised in his pro se supplemental brief, that the prosecutor presented perjured testimony is unpreserved for appellate review, and, in any event, without merit (see People v. Tate, 110 A.D.3d 1013, 972 N.Y.S.2d 719 ).
The defendant's remaining contention, raised in his pro se supplemental brief, that the judgment should be vacated on the basis that he is actually innocent is not reviewable on direct appeal from the judgment. Rather, such a claim of actual innocence should be raised in a CPL 440.10 motion (see e.g. People v. Hamilton, 115 A.D.3d 12, 15, 979 N.Y.S.2d 97 ).
CHAMBERS, J.P., AUSTIN, MILLER and DUFFY, JJ., concur.