| People v Johnson |
| 2007 NY Slip Op 07236 [43 AD3d 1422] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jerry L.Johnson, Appellant. |
—[*1] Jerry L. Johnson, defendant-appellant pro se. Frank J. Clark, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), rendered August29, 2005. The judgment convicted defendant, upon a jury verdict, of murder in the second degreeand criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial ofmurder in the second degree (Penal Law § 125.25 [1]) and criminal possession of aweapon in the third degree (§ 265.02 [1]). Defendant contends that the murder convictionis not supported by legally sufficient evidence because he was intoxicated at the time of theincident and the People failed to establish that he formed the specific intent to commit murder.Defendant made only a general motion to dismiss and thus failed to preserve his contention forour review (see People v Gray, 86 NY2d 10, 19 [1995]). In any event, the evidence,viewed in the light most favorable to the prosecution (see People v Contes, 60 NY2d620, 621 [1983]), is legally sufficient to support the conviction (see People v DeJesus, 16 AD3d1112, 1112-1113 [2005], lv denied 4 NY3d 853 [2005]; see generally People vBleakley, 69 NY2d 490, 495 [1987]). We further conclude that the verdict is not against theweight of the evidence (see People v Wallace, 217 AD2d 918 [1995], lv denied86 NY2d 847 [1995]; see generally Bleakley, 69 NY2d at 495).
Contrary to the contention of defendant, County Court did not err in denying hisBatson challenge. The court properly determined that the prosecutor's explanations forexercising peremptory challenges with respect to two prospective jurors were race-neutral, anddefendant failed to meet his ultimate burden of showing that those explanations were pretextual(see People v Johnson, 38 AD3d1327 [2007], lv denied 9 NY3d 866 [2007]; People v Scott, 32 AD3d 1178, 1180 [2006], lv denied 8NY3d 884 [2007]; see generally People v Smocum, 99 NY2d 418, 422-423 [2003]). Thecourt also properly refused to suppress the red sweatshirt that defendant was allegedly wearing atthe time of the murder. The police had received a description of defendant, including the clothinghe was [*2]wearing, and they observed the sweatshirt in plainview when they went to defendant's apartment (see People v Stein, 306 AD2d 943[2003], lv denied 100 NY2d 599 [2003], 1 NY3d 581 [2003]; see also People vThomas, 259 AD2d 997, 997-998 [1999], lv denied 93 NY2d 980 [1999], certdenied 528 US 1026 [1999]; see generally People v Diaz, 81 NY2d 106, 110 [1993]).The sentence is not unduly harsh or severe.
Contrary to the contention of defendant in his main brief and his pro se supplemental brief,he received effective assistance of counsel (see People v Baldi, 54 NY2d 137, 147[1981]). We reject the further contention of defendant in his pro se supplemental brief that thecourt abused its discretion in failing, sua sponte, to order a competency hearing (see People vTortorici, 92 NY2d 757, 765-766 [1999], cert denied 528 US 834 [1999]; People v Taylor, 13 AD3d 1168[2004], lv denied 4 NY3d 836 [2005]; People v Mauricio, 8 AD3d 1089 [2004], lv denied 3 NY3d678 [2004]). There is no indication in the record that defendant was unable to understand theproceedings or to assist in his defense (see People v Monk, 29 AD3d 605 [2006]; Taylor, 13 AD3dat 1169). We have reviewed the remaining contentions raised in the pro se supplemental briefand conclude that they are without merit. Present—Gorski, J.P., Smith, Centra, Fahey andGreen, JJ.