Opinion
595 KA 19-01169
06-11-2021
The PEOPLE of the State of New York, Respondent, v. Michael SMYRE, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., NEMOYER, TROUTMAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree ( Penal Law § 125.25 [3] ) and burglary in the first degree (§ 140.30 [1]). We reject defendant's contention that Supreme Court erred in refusing to admit in evidence a statement of a codefendant as a declaration against penal interest. The portions of the codefendant's statement regarding defendant's involvement in the crime were not against the codefendant's penal interest (see People v. Ennis , 11 N.Y.3d 403, 412-413, 872 N.Y.S.2d 364, 900 N.E.2d 915 [2008], cert denied 556 U.S. 1240, 129 S.Ct. 2383, 173 L.Ed.2d 1301 [2009] ; People v. Arias , 243 A.D.2d 309, 309, 664 N.Y.S.2d 522 [1st Dept. 1997], lv denied 91 N.Y.2d 1004, 676 N.Y.S.2d 132, 698 N.E.2d 961 [1998] ; see generally People v. Brensic , 70 N.Y.2d 9, 16, 517 N.Y.S.2d 120, 509 N.E.2d 1226 [1987] ). Moreover, there was no showing that the codefendant's statement is reliable (see Ennis , 11 N.Y.3d at 413, 872 N.Y.S.2d 364, 900 N.E.2d 915 ; People v. Roberts , 288 A.D.2d 403, 403-404, 733 N.Y.S.2d 230 [2d Dept. 2001], lv denied 97 N.Y.2d 760, 742 N.Y.S.2d 621, 769 N.E.2d 367 [2002] ; see generally People v. Shabazz , 22 N.Y.3d 896, 898, 977 N.Y.S.2d 141, 999 N.E.2d 504 [2013] ). Inasmuch as "the statement was properly excluded as inadmissible hearsay, the defendant's contention that his constitutional right to present a defense was violated is without merit" ( People v. Simmons , 84 A.D.3d 1120, 1121, 924 N.Y.S.2d 273 [2d Dept. 2011], lv denied 18 N.Y.3d 928, 942 N.Y.S.2d 467, 965 N.E.2d 969 [2012] ; see generally People v. Jones , 129 A.D.3d 477, 477-478, 12 N.Y.S.3d 27 [1st Dept. 2015], lv denied 26 N.Y.3d 931, 17 N.Y.S.3d 93, 38 N.E.3d 839 [2015] ).
We reject defendant's further contention that the court erred in denying his Batson challenge with respect to two prospective jurors. The People gave race-neutral reasons for the peremptory challenges, and defendant did not meet his ultimate burden of establishing that those reasons were pretextual (see People v. Switts , 148 A.D.3d 1610, 1611, 52 N.Y.S.3d 178 [4th Dept. 2017], lv denied 29 N.Y.3d 1087, 64 N.Y.S.3d 177, 86 N.E.3d 264 [2017] ; People v. Johnson , 38 A.D.3d 1327, 1328, 833 N.Y.S.2d 338 [4th Dept. 2007], lv denied 9 N.Y.3d 866, 840 N.Y.S.2d 895, 872 N.E.2d 1201 [2007] ). "[T]he court was in the best position to observe the demeanor of the prospective juror[s] and the prosecutor, and its [implicit] determination that the prosecutor's explanation[s were] race-neutral and not pretextual is entitled to great deference" ( People v. Dandridge , 26 A.D.3d 779, 780, 809 N.Y.S.2d 353 [4th Dept. 2006], lv denied 9 N.Y.3d 1032, 852 N.Y.S.2d 18, 881 N.E.2d 1205 [2008] [internal quotation marks omitted]), and we see no reason to disturb that determination.
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), and affording great deference to the jury's credibility determinations (see People v. Romero , 7 N.Y.3d 633, 644, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Finally, the sentence is not unduly harsh or severe.