Opinion
10-12-2016
The PEOPLE, etc., respondent, v. Quinton RUBIN, appellant.
Laurette Mulry, Riverhead, NY (Kirk R. Brandt of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, NY (Karla Lato of counsel), for respondent.
Laurette Mulry, Riverhead, NY (Kirk R. Brandt of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Karla Lato of counsel), for respondent.
RANDALL T. ENG, P.J., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, and FRANCESCA E. CONNOLLY, JJ.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Condon, J.), rendered April 16, 2014, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
During jury selection, the defendant raised a Batson objection (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 ) to the prosecutor's exercise of a peremptory challenge to strike a black prospective juror. After the prosecutor proffered a facially race-neutral explanation for striking the prospective juror, the County Court accepted his explanation, and denied the defendant's Batson objection. The defendant did not object to the County Court's acceptance of the prosecutor's explanation, and did not articulate any reason why he believed that the explanation was pretextual. Accordingly, his present contention that the prosecutor's explanation was pretextual is unpreserved for appellate review (see People v. James, 99 N.Y.2d 264, 272, 755 N.Y.S.2d 43, 784 N.E.2d 1152 ; People v. Larkins, 128 A.D.3d 1436, 1441, 8 N.Y.S.3d 755 ; People v. Tucker, 22 A.D.3d 353, 802 N.Y.S.2d 153 ; People v. Figueroa, 276 A.D.2d 561, 562, 714 N.Y.S.2d 241 ). In any event, there is no basis to disturb the County Court's determination that the race-neutral explanation provided by the prosecutor for striking the prospective juror was not pretextual (see People v. Hecker, 15 N.Y.3d 625, 917 N.Y.S.2d 39, 942 N.E.2d 248 ; People v. Tucker, 131 A.D.3d 713, 714, 15 N.Y.S.3d 224 ; People v. Perkins, 124 A.D.3d 915, 916, 2 N.Y.S.3d 220, lv. granted 25 N.Y.3d 1205, 16 N.Y.S.3d 528, 37 N.E.3d 1171 ; People v. English, 119 A.D.3d 706, 988 N.Y.S.2d 697 ).
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. 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, 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 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt 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 County Court properly permitted the records custodian of a cellular phone company to testify regarding the movement of the defendant's phone during a call made shortly before the victim was killed. The challenged testimony, which was based on records showing the proximity of the phone to particular cell towers, was within the record custodian's knowledge and experience (see People v. Paige, 68 A.D.3d 609, 610, 891 N.Y.S.2d 374 ; see also United States v. Fama, 2012 WL 6102700, 2012 U.S. Dist. LEXIS 174887 [E.D.N.Y., 12–CR–186 (WFK) ] ). The defendant's additional claim that his cell phone records were improperly admitted on the ground that the prosecution did not obtain them in accordance with the Stored Communications Act (see 18 U.S.C. § 2703 [d] ) is unpreserved for appellate review (see CPL 470.05[2] ). In any event, contrary to the defendant's contention, the record demonstrates that the prosecution properly obtained his cell phone records by court order issued pursuant to the Stored Communications Act (see People v. Sorrentino, 93 A.D.3d 450, 451, 939 N.Y.S.2d 452 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).