Opinion
2014-05-14
The PEOPLE, etc., respondent, v. Zenell WOOD, appellant.
Robert C. Mitchell, Riverhead, N.Y. (Louis E. Mazzola of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Grazia DiVincenzo of counsel), for respondent.
Robert C. Mitchell, Riverhead, N.Y. (Louis E. Mazzola of counsel), for appellant.Thomas J. Spota, District Attorney, Riverhead, N.Y. (Grazia DiVincenzo of counsel), for respondent.
, J.P., CHERYL E. CHAMBERS, PLUMMER E. LOTT, and COLLEEN D. DUFFY, JJ.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Cohen, J.), rendered March 23, 2011, convicting him of attempted murder in the second degree, criminal use of a firearm in the first degree, and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the prosecutor offered a race-neutral explanation for exercising a peremptory challenge as to prospective juror number 6 in the third round of jury selection ( see Purkett v. Elem, 514 U.S. 765, 767–768, 115 S.Ct. 1769, 131 L.Ed.2d 834). The burden then shifted to the defendant to demonstrate that the proffered explanation was a pretext for discrimination, and he failed to carry that burden ( see People v. Norris, 98 A.D.3d 586, 949 N.Y.S.2d 472;People v. Celestine, 243 A.D.2d 485, 486, 665 N.Y.S.2d 278). The defendant's challenge to the prosecutor's use of a peremptory challenge as to prospective juror number 18 in the first round of jury selection is unpreserved for appellate review ( see People v. Lugo, 69 A.D.3d 654, 893 N.Y.S.2d 173;People v. Patterson, 40 A.D.3d 659, 833 N.Y.S.2d 411), and, in any event, without merit ( see People v. Richie, 217 A.D.2d 84, 89, 635 N.Y.S.2d 263).
The Supreme Court properly admitted into evidence certain recorded telephone conversations in which the defendant tried to dissuade a witness from testifying at his trial, as that evidence constituted consciousness of guilt ( see People v. Shilitano, 218 N.Y. 161, 179, 112 N.E. 733;People v. Marcus, 101 A.D.3d 1046, 1048, 956 N.Y.S.2d 167;People v. Haigler, 44 A.D.3d 329, 843 N.Y.S.2d 36). The defendant's contention that the admission of this evidence violated his right of confrontation is without merit ( see generally Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177).
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 ( seeCPL 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,cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;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 sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.