Opinion
Argued June 18, 2001.
July 30, 2001.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hall, J.), rendered April 14, 1993, convicting him of rape in the first degree (two counts) and sexual abuse in the first degree (six counts), upon a jury verdict, and imposing sentence.
Andrew C. Fine, New York, N.Y. (Daniel Hsiung of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Joyce Slevin, and Diana Villanueva of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., GLORIA GOLDSTEIN, ANITA R. FLORIO, STEPHEN G. CRANE, JJ.
ORDERED that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).
The defendant has not preserved for appellate review his claim that the prosecutor's comments during summation were unfair (see, CPL 470.05). In any event, the comments were either responsive to the defense counsel's summation (see, People v. Galloway, 54 N.Y.2d 396), within the bounds of permissible rhetorical comment, or were fair comment on the evidence (see, People v. Ashwal, 39 N.Y.2d 105; People v. Turner, 214 A.D.2d 594).
Similarly without merit is the defendant's contention that the trial court failed to properly respond to notes from the jury which requested readbacks of testimony. Under the circumstances, it cannot be said that the trial court did not meaningfully respond to the jury's request (see, People v. Malloy, 55 N.Y.2d 296, cert denied 459 U.S. 847; People v. Latchman, 251 A.D.2d 683).
The trial court providently exercised its discretion in denying the defendant's challenge for cause to a prospective juror as it was not shown that there was a substantial risk that the prospective juror could not be impartial (see, People v. Arnold, N Y2d [June 12, 2001]; People v. Johnson, 94 N.Y.2d 600; People v. Williams, 63 N.Y.2d 882; People v. Pagan, 191 A.D.2d 651). The trial court also properly determined that the defendant failed to make a prima facie showing that the prosecutor exercised peremptory challenges in a discriminatory manner (see, Batson v. Kentucky, 476 U.S. 79, mod 499 U.S. 400). The fact that five of the prosecutor's seven challenges were exercised against men does not, without more, establish a prima facie case (see, People v. Jenkins, 84 N.Y.2d 1001; People v. Harrison, 272 A.D.2d 554; People v. Rodriguez, 272 A.D.2d 482).
The defendant's remaining contentions are without merit.
SANTUCCI, J.P., GOLDSTEIN, FLORIO and CRANE, JJ., concur.