Opinion
2002-00204.
Decided March 22, 2004.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Knipel, J.), rendered January 7, 2002, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
JAMES LAYTON KOENIG, BROOKLYN, N.Y. (LEE EDELSON ON THE BRIEF), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Cynthia Kean of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., NANCY E. SMITH, HOWARD MILLER, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
After the defendant's counsel exercised peremptory challenges to two non-black prospective jurors in the third round of jury selection, the prosecutor raised a reverse-Batson objection ( see Batson v. Kentucky, 476 U.S. 79). The Supreme Court concluded that the facially race-neutral reasons proffered by the defendant's counsel with respect to one of the two challenges were pretextual. The Supreme Court's determination is entitled to great deference on appeal and will not be disturbed where, as here, it is supported by the record ( see People v. Brown, 280 A.D.2d 609; People v. Miller, 266 A.D.2d 478).
The defendant's arguments regarding alleged prosecutorial misconduct during summation are largely unpreserved for appellate review ( see CPL 470.05). In any event, the comments alleged to be inflammatory and prejudicial were all either fair comment on the evidence ( see People v. Ashwal, 39 N.Y.2d 105), responsive to arguments and theories presented in the defense counsel's summation ( see People v. Galloway, 54 N.Y.2d 396), or harmless in light of the overwhelming evidence of the defendant's guilt ( see People v. Crimmins, 36 N.Y.2d 230).
The defendant's contention that the purported murder weapon was improperly admitted into evidence is without merit. Where, as here, reasonable assurances established that the gun sought to be admitted was the same weapon as was used in the crime and that it was unchanged, any deficiencies in the chain of custody went only to the weight to be given to the evidence, not the admissibility ( see People v. Rodriguez, 238 A.D.2d 447, 448; People v. Donovan, 141 A.D.2d 835, 835-836).
ALTMAN, J.P., SMITH, H. MILLER and MASTRO, JJ., concur.